Univ.Qf  ill.  Library 

54 

*23 

mm-V**'***'*''*'*  " '-"  V ’•  - '- '•?'■  " >•  ■ — 


IN  THE  MATTER  OF 

- THE  RIGHTS  OF  THE  CITY  OF  CHICAGO  * 
WITH  RESPECT  TO 

STREETS  AND  SLIPS 

NORTH  OF  RANDOLPH  STREET  AND 
EAST  OF  MICHIGAN  AVENUE 


AN  OPINION 

GIVEN  TO  THE 

COMMITTEE  ON  RAILWAY  TERMINALS 

OF  THE 

CITY  COUNCIL  OF  CHICAGO 

BY 

WALTER  L.  FISHER 


Digitized  by  the  Internet  Archive 
in  2017  with  funding  from 

University  of  Illinois  Urbana-Champaign  Alternates 


https://archive.org/details/inmatterofrightsOOfish. 


Chicago,  May  21,  1919. 


Alderman  William  F.  Lipps, 

Chairman,  Committee  on  Railway  Terminals, 

City  Council  of  Chicago, 

City  Hall,  Chicago. 

Dear  Sir: 

Careful  consideration  has  been  given  to  your  request  for 
an  opinion  with  respect  to  the  rights  of  the  City  of  Chi- 
cago to  extend  its  jurisdiction  over  Lake  street,  South  Water 
street  and  River  street  easterly  to  or  towards  Lake  Michigan, 
and  the  right  of  the  city  to  prevent  the  Illinois  Central  Rail- 
road Company  from  filling  and  occupying  the  five  slips  which 
extend  into  its  yards  or  between  its  docks  east  of  Michigan  ave- 
nue and  north  of  Randolph  street.  There  are  many  questions 
of  law  involved  as  to  which  the  decisions  of  the  courts  are 
not  entirely  clear,  and  there  are  many  questions  of  fact  as  to 
which  the  evidence  presented  is  not  conclusive.  For  these 
reasons  the  opinions  hereinafter  expressed  are  necessarily 
- qualified. 

The  Illinois  Central  Railroad  Company  maintains  that  the 
rights  of  the  city  in  Lake  street  and  South  Water  street 
o terminate  at  the  easterly  line  of  Beaubien  court  about  180  feet 
east  of  Michigan  avenue,  and  its  rights  in  River  street 
: at  a line  250  feet  east  of  Michigan  avenue,  and  the  company 
proposes  that  in  the  ordinance  now  under  consideration,  relat- 
mg  to  the  lake  front  and  harbor,  the  city  shall  waive  any  claim 
of  right  to  extend  the  streets  in  an  easterly  direction 
beyond  the  respective  termini  above  indicated.  The  company 
I has  been  invited  to  submit  any  evidence  in  its  possession  tencl- 
yMng  to  support  the  views  thus  advanced,  and  has  submitted 
("n. various  records,  maps  and  other  documents,  as  well  as  cer- 
V>  tain  legal  opinions,  all  of  which  have  been  carefully  examined. 


U.  Of  ILL.  UB. 


9 


Subject  to  the  qualifications  hereinafter  noted,  it  is  my 
opinion  that  the  city  does  not  have  the  right  to  any  extension 
of  Lake  street  east  of  Beaubien  court;  that  it  may  have  the 
right  to  an  extension  of  River  street  east  of  the  line  250  feet 
east  of  Michigan  avenue;  that  it  does  have  the  right  to 
extend  or  occupy  South  Water  street  from  Beaubien  court 
easterly  to  or  towards  Lake  Michigan  (the  exact  location  and 
dimensions  of  such  extension  being  dependent  on  evidence  not 
now  available  to  us);  and  that  the  Illinois  Central  Railroad 
Company  does  not  have  the  right  to  fill  and  occupy  the  five 
slips  in  question  without  the  consent  of  the  city. 

The  Illinois  Central  Railroad  Company  claims  that  the  city 
has  no  right  to  extend  any  of  said  streets  nor  to  prevent  the 
filling  of  said  slips,  but  that  the  company  has  a good  title  to 
the  land  involved  in  the  streets  or  street  extensions,  and  to  the 
above  mentioned  slips,  by  deed,  by  legislative  authority,  by 
decree  of  court,  and  by  abandonment,  adverse  possession,  or 
estoppel.  After  careful  analysis  of  all  these  claims,  no  one 
of  them  appears  to  be  conclusively  established,  although  each 
of  them  presents  questions  of  serious  difficulty,  and  collec- 
tively they  make,  at  least  with  respect  to  some  of  the  rights 
claimed,  a formidable  case  for  the  city  to  overcome. 

The  principal  questions  of  law  and  fact  are  discussed  in 
the  following  statement.  My  partner,  Mr.  William  Warren 
Case,  has  co-operated  in  its  preparation  and  concurs  in  this 
opinion. 


Documentary  Evidence. 

Among  the  records  and  documents  which  have  been  ex- 
amined the  following  are  the  most  important : 

1.  The  printed  transcript  of  record  for  the  Supreme  Court 
of  the  United  States  in  the  Lake  Front  case,  reciting  numer- 
ous statutes,  ordinances,  deeds,  maps  and  other  muniments  of 
title  and  documentary  evidence. 


3 


2.  A printed  pamphlet  containing  the  decrees  rendered  by 
the  Circuit  Court  of  the  United  States,  the  Circuit  Court  of 
Appeals,  and  the  Supreme  Court  of  the  United  States  in 
the  Lake  Front  case. 

3.  The  various  documents,  enactments  and  other  data  set 
out  in  the  official  reports  of  the  Lake  Front  case,  ^specially 
in  volume  33  of  the  Federal  Reporter,  page  730,  and  in  volume 
146  of  the  United  States  Supreme  Court  Reports,  page  387; 
together  with  Mr.  Justice  Harlan’s  statement  of  facts  in  the 
report  in  volume  33  of  the  Federal  Reporter. 

4.  An  abstract  of  title  made  by  Handy,  Simmons  & Co. 
(herein  called  the  Handy  abstract),  dated  June  16,  1874,  and 
covering  various  property  in  the  southwest  fractional  quarter 
of  Section  10  east  of  Michigan  avenue  and  north  of  Randolph 
street. 

5.  Copy  of  a report  (herein  referred  to  as  the  Inman  re- 
port), dated  January  11, 1917,  made  by  George  Inman  to  John 
D.  Riley,  superintendent  of  maps;  accompanying  which  are 
various  diagrams,  blue  prints  and  copies  of  documents  in  the 
city  clerk’s  office. 

6.  A blue  print  of  the  plat  of  Fort  Dearborn  Addition  to 
Chicago,  purporting  to  be  copied  for  the  city  map  department 
from  a reprint  in  the  possession  of  the  corporation  counsel. 

7.  A blue  print  purporting  to  show  the  tracks,  buildings, 
piers  and  other  improvements  east  of  Michigan  avenue,  be- 
tween Madison  street  and  the  Chicago  River. 

8.  Printed  pamphlets  purporting  to  be  copies  of  lease  of 
November  1,  1872,  lease  of  May  21,  1894,  and  agreement  dated 
May  21,  1894,  for  partition  of  station  grounds,  all  between  the 
Illinois  Central  and  Michigan  Central  Railroad  Companies. 

9.  Typewritten  document  purporting  to  be  a copy  of  a 
deed  from  Illinois  Central  Railroad  Company  to  Michigan 
Central  Railroad  Company,  dated  March  22,  1864. 


4 


10.  Lieut.  Col.  J.  D.  Graham’s  annual  report  to  the  War 
Department,  dated  December  31,  1855  (herein  referred  to  as 
the  Graham  report),  printed  in  volume  5 of  United  States 
Senate  Executive  Documents  for  the  third  session  of  the 
Thirty-fourth  Congress. 

11.  A blue  print  in  the  United  States  Engineer’s  office  at 
Chicago  of  map  attached  to  agreement  of  September  26,  1855, 
set  out  in  the  Graham  report,  with  reference  to  line  of  excava- 
tion of  the  Chicago  River,  said  map  being  referred  to  in  said 
report  as  map  G17. 

12.  Document  purporting  to  he  copy  of  agreement  between 
the  Illinois  Central  Railroad  Company  and  the  United  States, 
dated  May  21,  1858,  with  reference  to  opening  in  south  pier 
in  front  of  slip  B;  also  communication  from  the  company’s 
engineer  to  its  counsel  transmitting  said  document,  together 
with  a blue  print  purporting  to  show  the  location  of  the  old 
south  pier  and  the  openings  therein. 

13.  Seven  affidavits  made  by  employees  of  the  Illinois  Cen- 
tral Railroad  Company  relating  to  the  occupancy  of  the  terri- 
tory in  question. 


I. 

Title;  to  Streets. 

While  the  questions  relating  to  the  streets  involve  much  of 
the  same  evidence  as  the  questions  relating  to  the  slips, 
separate  treatment  of  the  two  subjects  will  conduce  to  clear- 
ness, even  at  the  expense  of  some  repetition,  and  the  status  of 
the  streets  will,  therefore,  be  taken  up  first. 

Preliminary . 

From  information  thus  far  available  it  appears  that  in  the 
year  1804  the  United  States  established  on  the  soutlrwest 
fractional  quarter  of  Section  10  the  military  post  of  Fort 


5 


Dearborn,  bounded  on  the  north  and  east  by  the  Chicago 
River  and  Lake  Michigan,  and  on  the  south  and  west  by  what 
are  now  the  lines  of  Madison  street  and  State  street.  When 
this  reservation  was  no  longer  required  for  military  purposes, 
the  Government  caused  it  to  be  surveyed  and  divided  into 
blocks  and  lots,  and  the  plat  of  Fort  Dearborn  Addition  to 
Chicago  was  filed  for  record  June  7,  1839.  This  map  shows 
Lake  street  extending  97.3  feet,  South  Water  street  132  feet, 
and  River  street  about  232  feet  easterly  from  Michigan  avenue 
to  the  waters  of  Lake  Michigan.  The  effect  of  this  plat  of 
Fort  Dearborn  Addition  to  Chicago  was  to  vest  in  the  City 
of  Chicago,  which  was  incorporated  in  1837,  the  title  to  the 
soil  of  the  streets  delineated  thereon. 

United  States  v.  Illinois  Central  R.  R.  Co.,  154  U.  S., 
225. 

Williams  v.  Chicago,  247  111.,  240. 

The  Government,  however,  in  opening  Fort  Dearborn  Addi- 
tion to  sale  in  1839,  still  reserved  for  a Marine  Hospital  site 
an  area  at  the  north  end,  which  is  colored  green  on  the  map 
shown  at  page  18  of  the  Handy  abstract.  This  area  extended 
south  along  the  lake  shore  as  far  as  the  south  line  of  Lot 
5 in  Block  5,  a distance  of  224  feet  south  of  River  street 
measured  along  the  east  line  of  Michigan  avenue.  Across 
this  reserved  area  River  street  and  Michigan  avenue  are  pro- 
jected on  the  plat,  but  the  title  to  the  portion  of  these  streets 
falling  within  the  Marine  Hospital  grounds,  or  at  least  the 
effective  jurisdiction  over  the  same,  did  not  vest  in  the  City 
of  Chicago  until  the  Government  finally  relinquished  the  hos- 
pital reservation  and  sold  the  property. 

United  States  v.  Chicago,  7 How.,  185. 

There  is  no  doubt,  however,  that  the  title  to  River  street 
as  laid  out  on  the  plat  did  eventually  vest  in  fee  in  the  City 
of  Chicago. 

By  deed  dated  October  14,  1852,  copies  of  which  are  shown 


6 


on  page  302  of  the  printed  record  in  the  Lake  Front  case, 
and  on  page  81  of  the  Graham  Report,  and  which  was  rere- 
corded in  the  recorder’s  office  October  21,  1876,  in  Book  647, 
at  page  505,  as  Document  Number  107832,  the  United  States 
conveyed  to  the  Illinois  Central  Railroad  Company,  for  a con- 
sideration of  $45,000,  a part  of  the  Marine  Hospital  site, 
bounded  on  the  west  by  a line  250  feet  east  of  Michigan  ave- 
nue, on  the  north  by  the  piers  in  the  Chicago  River  forming 
the  harbor  of  the  city,  and  on  the  east  by  the  low-water  mark 
of  Lake  Michigan,  but  subject  to  the  right  of  excavation  au- 
thorized by  the  Congressional  . act  of  July  21,  1852. 

At  about  the  same  time,  or  within  a few  years 
thereafter,  the  company  acquired  from  various  owners 
all  the  other  shore  lots  as  far  south  as  Randolph  street. 
See  33  Fed.  Rep.,  page  744,  and  list  of  deeds  in  printed  record 
of  Lake  Front  case,  beginning  at  page  303.  The  land  east  of 
the  shore  line  thus  acquired  has  been  filled  in  and  artificially 
reclaimed  by  the  Illinois  Central  Railroad  Company.  It  is  to 
be  borne  in  mind,  however,  that  when  the  company  acquired 
this  shore  property,  the  waterfront  was  far  to  the  east  of  the 
line  where  it  is  shown  by  the  plat  of  Fort  Dearborn  Addition 
to  have  been  in  or  about  the  year  1839. 

Effect  of  Accretions. 

The  accretions  which  had  formed  along  the  shore,  whether 
due  to  the  natural  action  of  the  elements  or  to  the  extension 
of  the  Government  pier,  belonged  to  the  owners  of  the  water 
lots. 

Lovingston  v.  St.  Clair  County , 64  111.,  56. 

Br  undag e v.  Knox,  279  111.,  450. 

Subject,  therefore,  to  any  valid  rights  of  the  city  in  public 
streets,  the  Illinois  Central  Railroad  Company  obtained 
through  its  several  purchases  a good  title  to  all  the  land  be- 
tween the  Chicago  River  and  Randolph  street  bounded  by  the 
water’s  edge  as  it  then  was,  and  good  title  to  any  subsequent 


7 


accretions  formed  before  the  company  began  to  reclaim  the 
submerged  land  artificially.  The  streets  laid  out  on  the  plat 
as  affording  access  to  the  water  continued,  nevertheless,  to 
extend  to  the  lake  shore  over  the  intervening  accretions. 

Newark  Lime  Co.  v.  Newark,  15  N.  J.  Eq.,  64. 

State  v.  Yates,  104  Me.,  360;  71  Atl.,  1018. 

Frater  v.  Wharf  Co .,  57  Fla.,  63 ; 49  So.,  188. 

Hathaway  v.  Mihvaukee,  132  Wis.,  249  ; 111  N.  W., 
570. 

One  claim  put  forward,  however,  is  that  the  shore  lots  de- 
picted on  the  plat  of  Fort  Dearborn  Addition  fronted  in  fact 
upon  an  old  channel  of  the  Chicago  Eiver  and  not  upon  the 
lake,  and  the  argument  on  that  assumption  is  that  title  to  the 
accretions  would  only  extend  to  the  middle  of  the  river  channel, 
somewhere  in  the  neighborhood,  it  is  supposed,  of  Beaubien 
court.  From  testimony  of  witnesses  printed  in  the  record 
of  the  Lake  Front  case,  it  appears  that  at  the  time  of  the 
original  township  survey  in  1821,  there  was  at  the  mouth  of  the 
river  a sandbar,  which  in  the  dry  season  nearly,  and  some- 
times entirely,  closed  the  direct  outlet  into  the  lake.  Under 
such  conditions  the  current  became  imperceptible,  and  what 
little  flow  there  was  often  found  its  way  through  a channel 
inside  of  the  bar  to  an  outlet  near  Madison  street.  In  the 
early  spring  months  a strong  current  would  again  score  its 
way  through  the  barrier  into  the  lake.  In  1822  the  freshets 
closed  the  south  channel  altogether  for  the  time  being.  Simi- 
lar conditions  were  reported  by  the  United  States  Engineer 
in  1830  (Printed  Becord,  page  464) ; though  an  earlier  topo- 
graphical map  accompanying  the  report  and  attached  to  the 
Lake  Front  case  record  (original  page  1206)  pictures  the  river 
as  circling  about  Fort  Dearborn  inside  of  a beach  of  sand  and 
gravel. 

The  south  pier,  constructed  at  the  mouth  of  the  river  about 
1834,  must  have  closed  this  old  channel  altogether  at  the  north 


8 


end,  and  certainly  produced  material  changes  in  the  shore 
line.  Sand  gradually  accumulated  south  of  the  pier,  and  the 
Surveyor  General,  by  request  of  certain  persons  who  had  built 
shanties  on  the  new  land,  caused  a survey  of  what  was  called 
a sandbar  or  island  to  be  made  by  E.  B.  Talcott.  (Handy 
Abstract,  page  2.)  This  Talcott  survey,  dated  February  13, 
1836,  covers  everything  east  of  the  line  of  the  original  1821 
survey,  and  includes  land  on  both  sides  of  what  is  shown  there- 
on as  the  old  river  channel.  The  area  shown  by  Talcott  in 
Section  10  is  26.17  acres,  hut  the  survey  itself  was  officially 
rejected  by  the  Government  for  the  express  reason  that  the 
tract  surveyed  was  an  accretion  to  and  hence  a part  of  the 
Fort  Dearborn  reservation.  Prior  to  this  decision,  however, 
according  to  witnesses  examined  in  the  Lake  Front  case,  a 
gale  had  blotted  the  island  or  sandbar  out  of  existence,  ex- 
cept perhaps  a small  spit  adjacent  to  the  mouth  of  the  Chi- 
cago River.  If  the  bar  appeared  again  it  was  doubtless  soon 
merged  in  permanent  accretions  to  the  shore.  While  there 
seems  to  have  been  water  in  parts  of  the  old  channel  when  the 
Illinois  Central  passenger  station  was  erected  about  1855, 
the  existence  of  any  permanent  river  channel  between  the 
outer  bar  and  the  upland  remains  a matter  of  speculation. 
Mr.  Inman,  of  the  city  map  department,  believes  that  there  are 
old  charts  in  the  Land  Department  at  Washington  which 
might  throw  additional  light  on  the  history  of  the  accretions 
to  the  shore  and  of  the  old  river  channel.  The  witnesses  who 
testified  in  the  Lake  Front  case  are  dead,  but  the  decision  of 
the  Government  (Handy  Abstract,  page  69)  that  the  flats 
included  in  the  Talcott  survey  were  in  fact  an  accretion  to 
Fort  Dearborn  reservation  is  entitled  to  some  consideration 
as  evidence  that  the  shore  lots  platted  upon  Fort  Dearborn 
Addition  extended  to  Lake  Michigan  and  not  merely  to  the 
margin  of  a river;  and  any  person  claiming  legal  rights  by 
reason  of  a river  channel  east  of  the  Fort  Dearborn  Addition 
would  have  the  burden  of  showing  that  the  plat  of  that  addi- 


9 


tion  erred  in  its  representation  of  the  lots  as  fronting  on 
Lake  Michigan. 


A rtificial  Reclamatio n. 

Soon  after  the  year  1852,  however,  as  hereinafter  more  fully 
set  forth  in  detail,  the  Illinois  Central  Railroad  Company  be- 
gan to  fill  the  bed  of  the  lake  opposite  the  street  ends,  and  in 
the  course  of  a few  years  had  thus  reclaimed  an  extensive  area. 
The  company  claimed  the  right  to  appropriate  the  submerged 
lands,  first,  as  a common-law  incident  of  the  ownership  of  the 
shore,  and  secondly,  by  virtue  of  the  provisions  of  its  charter. 
At  this  stage  of  the  argument,  it  is  sufficient  to  observe  that 
neither  claim  was  well  grounded  in  law.  The  bed  of  Lake 
Michigan  belonged  to  the  State  of  Illinois,  and  could  not  law- 
fully be  appropriated  to  private  use  by  owners  of  the  shore. 

Revell  v.  People,  177  111.,  468. 

Cobb  v.  Lincoln  Park  Commissioners,  202  111.,  427. 

Shively  v.  Boivlby,  152  U.  S.,  1. 

It  is  also  true  that  the  charter  of  the  company,  rightly  in- 
terpreted, conferred  upon  it  no  right  to  reclaim  the  submerged 
land. 

Illinois  Central  R.  R.  Co.  v.  Chicago,  173  111.,  471. 

Illinois  Central  R.  R.  Co.  v.  Chicago,  176  U.  S.,  646. 

The  Lake  Front  Act  of  1869,  hereinafter  referred  to,  op- 
erated as  a condonation  of  the  trespasses  committed  up  to  that 
time  upon  the  domain  of  the  state,  and  also,  until  its  repeal 
in  1873,  as  a license  for  further  encroachments. 

Illinois  v.  Illinois  Central  R.  R.  Co.,  146  U.  S.,  387. 

The  precise  terms  and  effect  of  the  decrees  in  the  Lake 
Front  case  will  be  more  fully  considered  under  a subsequent 
heading.  The  view  of  riparian  rights  in  this  state  adopted  by 
the  United  States  Supreme  Court  is  admitted  to  have  been 
wrong,  but  the  decree  itself,  upon  all  issues  actually  raised  and 


10 


determined  between  the  parties,  became  nevertheless  the  “law 
of  the  case,”  and  is  an  adjudication  binding  upon  the  Illinois 
Central  Railroad  Company,  the  State  of  Illinois  and  the  City 
of  Chicago. 

Illinois  v.  Illinois  Central  R.  R.  Co.,  184  U.  S.,  77. 

By  that  decree  it  was  determined  and  adjudged : 

“That  the  Illinois  Central  Railroad  Company  is  the 
owner  in  fee  of  all  the  wharves,  piers  and  other  structures 
erected  by  it  in  the  City  of  Chicago  east  of  Michigan  ave- 
nue, south  of  the  Chicago  River  and  north  of  the  north 
line  of  Randolph  street.” 

It  may  be  taken,  therefore,  as  settled  between  the  parties 
to  this  litigation  that  the  Illinois  Central  Railroad  Company, 
whether  by  virtue  of  its  riparian  rights  or  under  some  other 
pretext,  became  the  general  legal  owner  of  the  artificially  re- 
claimed land  in  front  of  Fort  Dearborn  Addition.  The  con- 
clusion, however,  by  no  means  follows  that  the  title  thus  ac- 
quired was  or  is  in  derogation  of  the  public  right  to  streets 
extending  over  the  made  land  to  the  new  water  front. 

4 1 The  rule  of  law  is  well  settled  that  a public  street  lead- 
ing to  navigable  waters  will  keep  even  pace  with  the  ex- 
tension of  the  land,  whether  the  change  in  the  land  be  due 
to  natural  causes  or  to  the  voluntary  act  of  the  owners 
of  the  land.  ’ ’ 

Frater  v.  Wharf  Company , 57  Fla.,  63;  49  So.,  188. 

Dana  v.  Craddock,  66  N.  H.,  593;  32  Atl.,  757. 

Allen  v.  Ruff alo  Ry.  Co.,  151  N.  Y.,  453;  45  N.  E.,  845. 

Jersey  City  v.  Morris  Canal,  12  N.  J.  Eq.,  548. 

Few  ark  Lime  Co.  v.  Newark,  15  N.  J.  Eq.,  64. 

In  re  Wells  Avenue,  4 N.  Y.  Supp.,  300. 

If  the  owner  of  the  shore,  even  by  virtue  of  legislative 
authority,  builds  a wharf  across  the  end  of  a street,  the  effect 
will  not  be  to  close  the  thoroughfare,  but  the  street  will  ex- 
tend across  the  wharf  to  the  water’s  edge. 

Ruff  alo  v.  Railroad  Co.,  190  N.  Y.,  84;  82  N.  E.,  513. 


11 


In  the  leading  case  on  this  subject,  decided  in  New  York  in 
1847,  the  facts  were  that  the  owner  of  land  on  the  East  River, 
through  which  a street  had  been  extended  to  tidewater,  was 
expressly  authorized  by  the  legislature  to  construct  wharves, 
docks,  bulkheads  and  piers  on  the  land  under  water  in  front 
of  his  own  land.  This  he  did,  filling  up  the  intervening  space. 
Conceding  that  his  works  were  strictly  in  accordance  with  the 
authority  conferred  by  the  statute,  the  court  held  that  the 
street  still  extended  across  them  and  over  the  bulkhead  to  the 
water,  saying: 

“Although  the  owner  of  the  land  on  the  shore  has  for 
his  own  benefit  filled  up  the  waterway  in  front  of  the 
original  terminus  of  the  street,  this  should  not  be  allowed 
to  destroy  the  right  to  pass  directly  between  the  street 
and  the  river,  a result  which  can  only  be  attained  by  an 
extension  of  the  street  commensurate  with  the  now  solid 
but  new-made  ground.  ” 

People  v.  Lambier , 5 Denio,  9. 

The  decision  of  the  Supreme  Court  of  the  United  States  in 
what  is  known  as  the  Hoboken  case  is  sometimes  cited  as  an 
authority  to  the  contrary.  In  1873  the  New  Jersey  courts 
had  decided  that  a street  dedicated  by  plat  as  extending  to 
tidewater  continues  by  operation  of  law  to  extend  to  tide- 
water across  lands  reclaimed  by  a corporation  under  legis- 
lative authority. 

Hoboken  Land  and  Improvement  Co.  v.  Hoboken,  36 

N.  J.  L.,  540. 

But  in  subsequent  cases,  where  the  legislature  made  an  abso- 
lute grant  of  the  submerged  lands  to  a corporation,  instead 
of  merely  authorizing  the  corporation  to  reclaim  and  use  the 
lands,  it  was  held  that  the  street  was  cut  off  short  at  its 
original  terminus. 

Hoboken  v.  Pennsylvania  R.  R.  Co.,  124  U.  S.,  656. 

Elizabeth  v.  Central  R.  R.  Co.,  68  N.  J.  Eq.,  198. 


12 


It  must  be  remembered  that  the  several  states  are  the  final 
judges  of  their  own  law  with  respect  to  the  title  to  sub- 
merged lands,  and  are  not  bound  by  the  decisions  of  the  Su- 
preme Court  of  the  United  States. 

Shively  v.  Bowlby , 152  U.  S.,  1. 

Revell  v.  People,  177  111.,  468. 

The  Hoboken  decision  may  be  good  law  in  New  Jersey,  but 
it  cannot  be  accepted  as  determining  the  law  in  Illinois.  By  a 
local  rule  of  the  common  law  obtaining  in  New  Jersey  the 
owner  of  land  on  tidewater  could,  unless  prevented  by  the 
state,  fill  in  the  shallows  and  thereby  acquire  title  to  the  area 
reclaimed. 

Gough  v.  Bell , 22  N.  J.  L.,  441. 

For  some  years  it  was  there  an  open  question  whether  the 
state  could  convey  the  submerged  land  to  a stranger  and  thus 
destroy  the  riparian  rights  of  the  owner  of  the  shore,  but  it 
was  finally  decided  by  a divided  court  that  the  shore  owner 
had  no  riparian  rights  as  against  a grantee  from  the  state 
of  the  submerged  flats. 

Bell  v.  Gough,  23  N.  J.  L.,  624. 

State  v.  Jersey  City,  25  N.  J.  L.,  525. 

Stevens  v.  Paterson  R.  R.  Co.,  34  N.  J.  L.,  532. 

Of  this  harsh  doctrine,  which  prevails  in  a few  other  states 
also,  the  Hoboken  decision  was  a natural  corollary,  but  in 
Illinois  a riparian  owner’s  access  to  the  water  is  a property 
right  which  cannot  be  destroyed  by  the  state  except  under  the 
power  of  eminent  domain. 

Commissioners  of  Lincoln  Park  v.  Fahrney,  250  111., 
256,  264. 

Miller  v.  Commissioners  of  Lincoln  Park,  278  111., 
400,  404,  408. 

But  even  if  the  State  of  Illinois  possessed  power  to  deprive 
a shore  owner  of  his  access  to  the  water  without  compensa- 


tion,  and  if  that  power  included  the  right  to  close  a public 
street  extending  to  the  water’s  edge,  still  there  is  nothing  in 
the  legislation  of  the  General  Assembly  indicating  an  inten- 
tion to  make  an  absolute  grant  to  the  Illinois  Central  Railroad 
Company  in  derogation  of  the  right  of  the  people.  In  1869, 
as  will  be  seen,  the  General  Assembly  did  indeed  assume  to 
make  an  absolute  grant  to  the  company  of  the  bed  of  Lake 
Michigan  for  a mile  from  the  shore,  but  the  act  was  adjudged 
to  be  void  as  violative  of  the  trust  upon  which  the  submerged 
lands  were  held  by  the  state  for  the  benefit  of  the  people. 

Illinois  v.  Illinois  Central  R.  R.  Co.,  146  U.  S.,  387. 

The  title  acquired  by  the  company  and  confirmed  by  the 
decree  in  the  Lake  Front  case  was  not  by  virtue  of  an  abso- 
lute grant  such  as  was  involved  in  Hoboken  v.  Pennsylvania 
R.  R.  Co.,  124  U.  S.,  656,  but  rather  by  virtue  of  a license  to 
reclaim,  similar  to  the  license  which,  in  Hoboken  Land  and 
Improvement  Company  v.  Hoboken,  36  N.  J.  L.,  540,  was 
held  not  to  prevent  a street  from  being  extended  to  tide- 
water across. the  reclaimed  land. 

Lake  Front  Decree  as  an  Adjudication. 

The  decree  in  the  Lake  Front  case  is  said  to  be  a formal 
adjudication  confirming  in  the  Illinois  Central  Railroad  Com- 
pany the  title  to  all  of  the  made  lands,  including  so  much 
of  the  area  as  would  fall  between  the  lines  of  the  streets 
produced  in  an  easterly  direction.  A careful  review  of  the 
proceeding  is  necessary  in  order  to  determine  how  far  the 
title  to  the  streets  was  actually  involved  in  the  issues  de- 
cided. 

The  Illinois  Central  Railroad  Company  was  incorporated 
in  1851  by  an  act  giving  it  authority  to  appropriate  for  the 
uses  set  forth  in  the  act  a right  of  way  two  hundred  feet  wide, 
and  to  enter  upon,  take  possession  of  and  use  any  land, 
streams  and  materials  for  depots,  station  grounds,  engine 


14 


houses,  shops  and  other  buildings  “necessary  for  the  con- 
struction, completing,  altering,  maintaining,  preserving  and 
complete  operation  of  said  road.”  Section  3 further  pro- 
vided that  “all  such  lands,  waters,  materials  and  privileges 
belonging  to  the  state  are  hereby  granted  to  said  corpora- 
tion for  said  purposes,”  but  no  authority  was  conferred  to 
locate  tracks  in  any  city  without  consent  of  the  common  coun- 
cil. Such  consent  to  enter  the  City  of  Chicago  was  given 
by  the  ordinance  of  June  14,  1852  (Special  Ordinances  1915 
edition,  page  861),  authorizing  the  company  to  construct  its 
railroad  along  the  margin  of  the  lake  northerly  to  such 
grounds  as  it  might  acquire  north  of  Randolph  street  in 
Fort  Dearborn  Addition,  upon  which  grounds  should  be  lo- 
cated the  company’s  depot,  and  such  other  buildings,  slips  or 
apparatus  as  might  be  necessary  or  convenient  for  its  busi- 
ness. The  company  was  further  authorized  to  extend  its 
works  and  fill  out  into  the  lake  to  a line  running  south  from 
a designated  point  in  the  southern  pier  parallel  with  Michi- 
gan avenue  to  the  north  line  of  Randolph  street  extended. 
Along  this  line  the  company  built  its  breakwater  and  filled 
up  the  intervening  space.  The  location  of  these  works  is 
shown  upon  the  Morehouse  map,  a copy  of  which  is  incorpo- 
rated as  a part  of  the  decree  in  the  Lake  Front  case  and  may 
be  seen  in  the  official  reports  of  the  decision. 

By  the  Lake  Front  Act  of  April  16,  1869,  the  General  As- 
sembly of  the  State  of  Illinois  undertook  to  grant  to  the  com- 
pany in  fee  all  the  right  and  title  of  the  state  to  the  sub- 
merged lands  for  a distance  of  one  mile  to  the  east  of  the 
tracks  and  breakwater  between  the  south  line  of  the  south  pier 
extended  east  and  a certain  line  south  of  TAvelftli  street  de- 
fined in  the  act.  This  statute  was  accepted  and  acted  upon, 
but  was  repealed  in  1873.  The  company,  denying  the  validity 
of  the  repeal,  made  extensive  plans  for  the  development  of  the 
Chicago  harbor  for  general  commercial  purposes,  and  in  1883 
the  Attorney  General  of  the  State  of  Illinois  filed  an  inf  or- 


15 


mation  on  behalf  of  the  state  to  determine  the  rights  of  the 
Railroad  Company,  making  the  Illinois  Central  Railroad  Com- 
pany and  the  City  of  Chicago  parties  defendant. 

As  between  two  defendants  who  have  merely  answered  the 
bill  of  complaint  a decree  in  equity  does  not  ordinarily  op- 
erate as  a technical  adjudication  of  their  rights.  In  order 
to  give  it  the  effect  of  a formal  estoppel  there  must  be  a di- 
rect issue  upon  the  pleadings  between  the  parties  who  are  to 
be  thus  concluded.  The  only  issues  joined  in  the  Lake  Front 
case  between  the  two  defendants  were  those  raised  by  the 
cross  bill  of  the  City  of  Chicago  and  the  answer  of  the  Illi- 
nois Central  Railroad  Company  to  the  same. 

The  cross  bill  was  filed  primarily  for  the  purpose  of  set- 
tling the  title  of  the  city  to  what  is  now  known  as  Grant 
Park,  and  establishing  the  city’s  right,  supposed  to  be  inci- 
dental to  such  riparian  ownership,  to  fill  in  the  bed  of  the  lake 
and  develop  the  harbor  of  Chicago.  Harbor  development 
was  the  real  bone  of  contention  between  the  city  and  the  rail- 
road company. 

Fractional  Section  15  was  subdivided  by  the  Canal  Commis- 
sioners in  1836  by  a plat  known  as  Fractional  Section  Fifteen 
Addition  to  Chicago,  upon  which  all  the  space  between  the 
west  line  of  Michigan  avenue  and  the  lake,  extending  from 
a point  200  feet  north  of  Twelfth  street  to  Madison  street, 
was  left  blank.  (Pr.  Rec.,  183.)  This  open  area  was  con- 
tinued from  Madison  street  to  the  north  line  of  Randolph 
street  by  the  plat  of  Fort  Dearborn  Addition  to  Chicago, 
upon  which  it  was  specifically  designated  as  “ Public 
Ground. ’ 9 The  contention  of  the  city,  sustained  by  the  decree 
of  court,  was  that  by  virtue  of  these  plats  the  city  acquired 
title  to  the  open  tracts  precisely  as  it  acquired  title  to  the 
streets,  and  that  the  city  was  consequently  the  owner  of  all 
the  riparian  rights  from  Randolph  street  to  within  200  feet 
of  Twelfth  street.  One  of  the  city’s  main  arguments  was  that 


16 


this  open  space,  several  hundred  feet  in  width,  was  a part  of 
Michigan  avenue,  at  least  as  far  north  as  Madison  street,  and 
there  was  no  controversy  whatever  about  the  title  to  the 
streets  except  as  involved  in  this  contention.  The  cross  bill 
goes  at  length  into  the  facts  relating  to  the  open  space  in 
Fractional  Section  15  south  of  Madison  street;  and  then,  as  a 
part  of  the  same  argument,  proceeds  to  allege  (Pr.  Rec., 
112)  that  the  city  is  the  owner  in  fee  of  “that 
portion  of  Fractional  Section  10  mentioned  in  said 
amended  information  which  lies  east  of  Michigan  ave- 
nue and  north  of  said  Fractional  Section  15  to  the 
north  line  of  Randolph  street that  the  plat  of  Fort 
Dearborn  Addition  was  recorded  June  7,  1839,  and  “the  said 
plat,  under  and  by  virtue  of  the  laws  of  the  State  of  Illinois 
then  in  force,  became  and  was  a conveyance  of  all  that  por- 
tion of  said  Section  10  to  the  municipality  known  as  the  City 
of  Chicago,”  to  be  held  in  trust  “for  the  public  use  indicated 
by  the  designation  upon  the  face  of  said  plat”;  also  “that 
said  plat  was  certified,  executed  and  recorded  in  all  respects 
in  conformity  with  the  then  laws  of  the  State  of  Illinois  in 
regard  to  platting,  and  that  the  fee  of  all  streets,  avenues, 
alleys  and  public  grounds  shown  thereon  passed  to  your 
orator  (the  city)  by  virtue  of  said  plat.”  The  cross  bill,  after 
further  stating  that  the  north  part  of  Fort  Dearborn  Addi- 
tion was  retained  by  the  United  States  as  a reservation  until 
about  1850,  when  the  streets  projected  across  the  same  were 
thrown  open  to  the  public,  continues : 

“And  your  orator  says  that  its  ownership  of  the 
streets  and  alleys  and  public  grounds  in  that  portion  of 
said  plat  which  remained  in  the  occupancy  of  the  Unitea 
States  was  in  abeyance  until  the  vacation  of  the  said 
ground  by  the  Government,  but  that  your  orator  became 
the  owner  in  fee  thereof  subject  to  such  occupancy,  which 
terminated  as  aforesaid  about  the  year  1850;  and  your 
orator  further  says  that  it  has,  and  has  had  since  June 
7,  1839,  the  control  and  use  for  public  ground  of  that 
part  of  said  fractional  section  10  mentioned  in  said 


17 


amended  information  which  lies  east  of  Michigan  avenue 
and  north  of  said  fractional  section  15  to  Randolph  street , 
and  subject  to  such  use  is  the  owner  in  fee  thereof,  and 
has  been  such  since  the  recording  of  the  plat  of  Fort 
Dearborn  Addition  as  hereinbefore  mentioned.  ” 

All  this  is  merely  incidental  to  the  real  purpose  of  the  cross 
bill,  which  as  already  indicated  was  to  test  the  right  of  the 
Illinois  Central  Railroad  Company  to  appropriate  a square 
mile  of  the  bed  of  Lake  Michigan  and  develop  it  as  a com- 
mercial harbor.  This  right  was  claimed  by  the  railroad  com- 
pany not  only  by  virtue  of  the  Act  of  April  16,  1869,  but  by 
virtue  of  its  alleged  ownership  of  the  shore.  The  city,  on 
the  other  hand,  also  based  its  claim  of  an  exclusive  right  to 
develop  the  harbor  upon  its  title  to  the  shore,  and  the  main 
issue,  under  the  view  taken  by  the  parties  of  the  law  of  ri- 
parian ownership,  was  whether  the  city  or  the  railroad  com- 
pany was  the  owner  of  the  riparian  rights.  Accordingly  the 
cross  bill  proceeds  to  insist  that  the  city  is  the  riparian 
owner  of  the  parts  of  fractional  sections  15  and  10  above 
mentioned,  and  is 

“the  owner  of  and  entitled  to  uninterrupted  access  to 
the  water  along  the  whole  line  of  said  Section  15  and  of 
said  portion  of  said  Section  10,  and  of  the  right  to  con- 
struct wharves,  piers,  quays,  slips  and  landing  places, 
and  of  the  right  of  reclamation,  and  to  create  a harbor 
for  the  City  of  Chicago  upon  the  shore  of  the  said  lake 
in  front  of  said  fractional  section  15  and  said  portion  of 
said  fractional  section  10.  ” 

The  cross  bill  then  challenges  the  validity  of  the  Lake 
Front  Act  of  April  16,  1869,  in  so  far  as  it  undertook  to  grant 
the  bed  of  the  lake  to  the  Illinois  Central  Railroad  Company 
for  general  harbor  purposes,  and  concludes  with  a prayer  for 
confirmation  of  the  city’s  title  to  the  park  areas,  and  of  its 
exclusive  right  to  develop  the  harbor. 

No  issue  is  tendered  in  this  cross  bill  with  respect  to  street 
extensions  over  reclaimed  land  or  even  over  natural  accre- 
tions, and  no  such  question  was  formulated  or  litigated  in  the 


18 


entire  proceeding’.  The  allegations  regarding  the  title  to 
streets  are  introduced  merely  by  way  of  argument  in  support 
of  the  claim  of  riparian  ownership  along  the  lake  front,  with 
the  supposedly  incidental  right  of  reclamation  and  general 
harbor  development,  which  was  the  question  actually  litigated. 

The  Illinois  Central  Railroad  Company  answered  the 
cross  bill  at  length  (Pr.  Pec.,  151),  questioning  whether  the 
plat  of  Port  Dearborn  Addition  was  executed  with  the  for- 
malities prescribed  by  the  statute  so  as  to  operate  as  a con- 
veyance of  title  to  the  streets,  but  insisting  that  the  question 
was  immaterial  “inasmuch  as  the  said  plat  and  subdivision 
embraced  only  that  portion  of  fractional  section  10  lying 
south  of  the  Chicago  River  and  west  of  the  shore  line  of 
Lake  Michigan,  and  did  not  purport  to  grant  and  did  not 
grant  any  title  or  easement  or  public  right  in  the  open  waters 
of  said  lake.”  The  answer  admits  the  facts  alleged  in  the 
cross  bill  about  the  streets  in  the  north  part  of  the  Addition 
reserved  until  about  1850,  and  then  proceeds  (page  157) : 

“But  this  defendant  denies  that  the  said  City  of  Chi- 
cago, by  virtue  thereof,  acquired  any  other  or  different 
interest  in  the  streets  so  opened  and  occupied  than  it 
had  previously  acquired  to  streets  in  other  portions  of 
said  subdivision ; and  this  defendant  also  denies  that  any 
of  the  streets  in  that  portion  of  said  subdivision  so  re- 
served, or  any  public  ground  therein,  bordered  upon  or 
came  in  contact  with  the  shore  line  of  Lake  Michigan  5 
that  between  Michigan  avenue  as  extended  through  said 
subdivision  to  the  Chicago  River  and  the  shore  of  said 
lake  was  interposed  a series  of  lots  and  parcels  of  land 
bounded  by  said  lake  upon  the  east,  and  which  were  sold 
by  the  United  States  to  private  purchasers  and  the  title 
to  which  was  subsequently  conveyed  in  and  by  the  United 
States,  or  the  purchasers  and  grantees  of  the  United 
States,  to  this  defendant,  The  Illinois  Central  Railroad 
Company,  and  that  by  virtue  of  such  purchases  and  the 
conveyance  made  to  this  defendant  in  pursuance  thereof 
this  defendant  became  and  ever  since  has  been  the  owner 
of  the  land  in  said  subdivision  fronting  on  Lake  Michigan, 
lying  north  of  Randolph  street,  in  the  City  of  Chicago, 
and  between  said  street  and  the  Chicago  River,  and 


19 


vested  thereby  with  all  the  rights  and  privileges  of  a 
riparian  owner  in  respect  to  the  same.” 

All  of  this  is  aimed,  not  to  raise  an  issue  about  the  owner- 
ship of  streets,  but  to  set  forth  the  admitted  fact  that  in  the 
part  of  the  subdivision  north  of  Randolph  street  there  was 
not,  as  in  the  areas  south  of  Randolph  street,  any  platted 
street  running  parallel  with  the  lake  and  extending  there- 
to, upon  the  existence  of  which  a claim  of  riparian  proprietor- 
ship could  be  rested  by  the  city. 

The  answer  then  denies  that  the  city  has  ever  been  a ripa- 
rian owner  of  any  part  of  fractional  sections  15  or  10,  “or 
that  it  is  or  ever  has  been,  in  any  proper  or  legal  acceptation 
of  the  terms,  the  owner  of  and  entitled  to  uninterrupted  ac- 
cess to  the  water  along  the  line  of  said  Section  15  or  any 
portion  of  said  Section  10,”  and  denies  that  the  city  has  the 
right  to  construct  wharves,  reclaim  land  or  develop  liabors 
in  front  of  the  same.  The  answer  is  voluminous,  but  it  is 
believed  that  the  foregoing  statement  includes  the  pertinent 
portions  thereof. 

It  will  thus  be  seen  that  no  issue  is  raised  by  the  pleadings 
with  respect  to  streets  in  or  over  the  made  lands;  especially 
in  view  of  the  fact  that  no  formal  issue  could  have  been  raised 
in  the  answer  by  allegations  not  responsive  to  those  of  the 
cross  bill. 

In  this  state  of  the  record,  the  United  States  Circuit  Court 
entered  its  decree  September  24,  1888,  finding  and  adjudging 
among  other  things  that  “the  fee  of  all  the  streets,  avenues, 
alleys  and  public  grounds  shown  upon  the  plat”  of  Fort  Dear- 
born Addition,  including  the  open  space  south  of  Randolph 
street  marked  “Public  Ground,”  and  also  the  fee  of  the 
open  space  on  the  plat  of  Fractional  Section  Fifteen  Addi- 
tion to  Chicago,  was  “in  the  City  of  Chicago  in  trust  for  pub- 
lic use”;  also  that  the  city  as  riparian  owner  had  power, 
subject  to  government  regulation,  to  erect  and  maintain  along 


20 


all  that  part  of  the  lake  front  public  landing  places,  wharves, 
docks  and  levees.  The  decree  then  proceeds  as  follows : 

“That  the  Illinois  Central  Railroad  Company  is  the 
owner  in  fee  of  all  the  wharves,  piers  and  other  struc- 
tures erected  by  it  in  the  City  of  Chicago,  east  of  Michi- 
gan avenue,  south  of  Chicago  River,  and  north  of  the 
north  line  of  Randolph  street  extended  eastwardly,  as 
shown  upon  said  Morehouse  map,  including  the  station 
grounds  lying  west  of  the  slip  C,  the  pier  marked  C ly- 
ing east  of  slip  C,  and  represented  upon  the  Morehouse 
map  to  have  been  built  in  1867,  and  piers  1,  2 and  3 lying 
east  of  pier  C last  mentioned,  and  represented  upon  said 
map  to  have  been  built  as  follows:  pier  1 in  1872  and 
1873,  pier  2 in  1881,  and  pier  3 in  1880,  and  is  also  en- 
titled to  the  use,  for  purposes  of  its  business,  of  the 
slips  marked  on  said  Morehouse  map.” 

The  decree  then  proceeds  to  determine  the  effect  of  Sec- 
tion 3 of  the  Lake  Front  Act  of  April  16,  1869,  the  material 
provisions  of  which  section  were  as  follows : 

“The  right  of  the  Illinois  Central  Railroad  Company 
under  the  grant  from  the  state  in  its  charter  * * *'  and 
under  and  by  virtue  of  its  appropriation,  occupancy,  use 
and  control,  and  the  riparian  ownership  incident  to  such 
grant,  appropriation,  occupancy,  use  and  control,  in  and 
to  the  lands,  submerged  or  otherwise,  lying  east  of  the 
said  line  running  parallel  with  and  four  hundred  feet  east 
of  the  west  line  of  Michigan  avenue  in  fractional  sections 
ten  and  fifteen,  township  and  range  as  aforesaid,  is  here- 
by confirmed,  and  all  the  right  and  title  of  the  State  of 
Illinois  in  and  to  the  submerged  lands  constituting  the 
bed  of  Lake  Michigan  and  lying  east  of  the  tracks  and 
breakwater  of  the  Illinois  Central  Railroad  Company,  for 
the  distance  of  one  mile,  and  between  the  south  line  of  the 
south  pier  extended  eastwardly  and  a line  extended  east- 
ward from  the  south  line  of  lot  twenty-one  # * are 

hereby  granted  in  fee  to  the  said  Illinois  Central  Railroad 
Company,  its  successors  and  assigns.” 

The  disposition  made  by  the  court  of  the  railroad  com- 
pany’s claims  under  this  section  can  best  be  seen  in  the  fol- 
lowing extract  from  the  decree: 

“ And  the  court  doth  further  find  and  declare,  and  it  is 
hereby  adjudged  and  decreed,  that  the  third  section  of  the 


21 


act  of  the  General  Assembly  of  the  State  of  Illinois, 
passed  over  the  Governor’s  veto  April  16,  1869,  entitled 
‘An  act  in  relation  to  a portion  of  the  submerged  lands 
and  lake  park  grounds  lying  on  and  adjacent  to  the  shore 
of  Lake  Michigan,  on  the  eastern  frontage  of  the  City  of 
Chicago,’  so  far  at  least  as  it  confirms  ‘the  right  of  the 
Illinois  Central  Eailroad  Company  under  the  grant  from 
the  state  in  its  charter,  # # * and  under  and  by  virtue 
of  its  appropriation,  occupancy,  use  and  control,  and  the 
riparian  ownership  incident  to  such  grant,  appropriation, 
occupancy,  use  and  control,  in  and  to  the  lands  submerged 
or  otherwise  lying  east  of  the  said  line  running  parallel 
with  and  four  hundred  feet  east  of  the  west  line  of  Michi- 
gan avenue  in  fractional  sections  ten  and  fifteen,’  is  a 
valid  and  constitutional  exercise  of  legislative  power  and 
legalizes  as  well  what  was  done  by  said  company  prior  to 
April  16,  1869,  in  the  way  of  filling  in  the  lake  and  con- 
structing wharves,  piers,  tracks,  warehouses  and  other 
works  between  the  Chicago  River  and  the  north  line  of 
Randolph  street  extended  eastwardly  as  its  occupancy 
and  use  for  way  ground  of  the  two  said  triangular  pieces 
of  ground  immediately  south  of  Randolph  street;  and 
that  the  subsequent  act  of  the  General  Assembly  of  Illi- 
nois, passed  April  15,  1873,  in  so  far  as  it  sought  by 
repealing  the  said  Act  of  April  15,  1869,  to  revoke  or 
annul  said  confirmatory  clause  of  the  last  named  act, 
was  void  under  the  Constitution  both  of  Illinois  and  of 
the  United  States;  but  the  court  is  of  opinion,  and  so 
adjudges  and  decrees,  that  the  said  Act  of  April  15,  1873, 
repealing  said  Act  of  April  16,  1869,  had  the  effect  in  law 
to  withdraw  from  said  railroad  company  the  grant  to  it, 
its  successors  and  assigns,  by  the  third  section  of  said 
Act  of  April  15,  1869,  of  ‘all  the  right  and  title  of  the 
State  of  Illinois  in  and  to  the  submerged  lands  constitut- 
ing the  bed  of  Lake  Michigan  and  lying  east  of  the 
tracks  and  breakwater  of  the  Illinois  Central  Railroad 
Company  for  the  distance  of  one  mile  and  between  the 
south  line  of  the  pier  extended  eastwardly  and  a line  ex- 
tended eastward  from  the  south  line  of  Lot  twenty-one 
south  of  and  near  to  the  roundhouse  and  machine  shops 
of  said  company,  in  the  south  division  of  said  City  of  Chi- 
cago’; and  to  reinvest  the  state  with  such  right  and  title 
as  it  had  in  and  to  said  premises  prior  to  the  passage 
of  said  Act  of  April  16,  1869;  and  said  repealing  act 
had  the  further  effect  to  withdraw  from  said  company 


22 


the  additional  power  conferred  upon  it  by  said  Act  of 
April  16,  1869,  to  improve  the  harbor  of  Chicago,  and  to 
engage  in  the  business  of  constructing  and  maintaining 
wharves,  piers  and  docks  for  the  benefit  of  commerce  and 
navigation  generally,  and  not  in  the  prosecution  of  its 
business  as  defined  and  limited  by  its  original  charter 
and  the  laws  of  the  state.  ” 

Lot  21  referred  to  in  the  decree  and  in  Section  3 of  the  Act 
of  April  16,  1869,  was  south  of  Fourteenth  street. 

When  the  case  came  before  the  Supreme  Court  of  the 
United  States  on  appeal  the  foregoing  decree  was  affirmed  in 
substance,  an  order  being  entered  April  10,  1893,  containing 
this  clause : 

“It  is  now  here  ordered,  adjudged  and  decreed  by  this 
court  that  the  State  of  Illinois  is  the  owner  in  fee  of  the 
submerged  lands  constituting  the  bed  of  Lake  Michigan 
which  the  third  section  of  the  Act  of  April  16,  1869,  pur- 
ported to  grant  to  the  Illinois  Central  Railroad  Company, 
and  that  the  Act  of  April  15,  1873,  repealing  the  same  is 
valid  and  effective  for  the  purpose  of  restoring  to  the 
state  the  same  control,  dominion  and  ownership  of  said 
lands  that  it  had  prior  to  the  passage  of  the  Act  of  April 
16,  1869.” 

The  only  other  modification  of  the  decree  of  the  court  be- 
low consisted  in  the  direction  of  an  inquiry  whether  certain 
piers  interfered  with  practical  navigation,  and  “except  as 
modified  in  the  particulars  mentioned”  that  decree  was  af- 
firmed. 

From  an  inspection  of  the  record,  it  is  plain  that  the  only 
question  raised  by  the  parties  or  determined  by  the  court  with 
respect  to  the  legal  sufficiency  of  the  plat  of  Fort  Dearborn 
Addition  had  to  do  with  the  title  to  the  “public  ground” 
south  of  Randolph  street  and  to  the  supposed  riparian  rights 
of  wharfage  and  reclamation,  with  special  reference  to  har- 
bor development.  There  was  no  dispute  about  the  title  to 
the  streets,  nor  about  their  eastern  termini.  If  the  Illinois 
Central  Railroad  Company  raised  any  such  question  at  all 


23 


by  the  passages  above  quoted  from  its  answer,  the  averments 
of  that  paragraph  were  not  responsive  to  anything  alleged  in 
the  cross  bill,  and  two  parties  are  needed  to  make  an  issue. 

“The  cases  are  substantially  agreed  as  to  the  rule, 
but  the  difficulty  arises  in  its  application,  in  determining 
what  is  to  be  understood  by  the  ‘ matters  in  issue ’ upon 
the  former  trial  and  what  is  meant  by  a judgment  di- 
rectly upon  the  same  matter.  * * * It  may  be  stated 

generally  that  by  ‘matter  in  issue ’ is  to  be  understood 
that  matter  upon  which  the  plaintiff  proceeds  by  his  action 
and  which  the  defendant  denies  or  controverts  by  bis 
pleadings.  ” 

Kitson  v.  Fanvell,  132  111.,  327,  339. 

In  other  words,  an  issue  cannot  be  accepted  by  a defendant 
until  it  has  been  tendered  by  an  acting  party.  It  is  true  that 
parties  who  have  actually  litigated  a question  are  often  es- 
topped to  reopen  it,  even  though  it  may  not  have  been  formu- 
lated in  a solemn  manner  by  the  pleadings.  It  is  also  true  that 
a question  necessarily  involved  in  the  decision  may  be  re- 
garded as  settled  thereby  even  though  never  formally  raised 
or  argued.  The  record  in  the  Lake  Front  case,  however,  fails 
to  show  that  the  title  of  the  city  to  the  street  ends  was 
tendered  in  an  issue  formally  joined,  or  was  actually  liti- 
gated, or  was  so  involved  in  the  litigation  as  to  be  neces- 
sarily determined  by  the  decree  and  in  my  opinion  it  does  not 
preclude  the  city  from  extending  the  street,  or  asserting  its 
rights  therein,  over  the  reclaimed  territory. 

Adverse  Possession  and  Abandonment. 

If  the  city  has  otherwise  a right  to  extend  the  streets  across 
the  made  land,  the  question  still  remains  whether  it  has 
lost  the  right  by  failing  to  make  timely  assertion  of  the 
same.  This  is  the  question  which  in  my  judgment  presents 
the  most  serious  obstacles  to  the  city’s  claims. 

Streets  are  held  for  the  benefit  of  the  public  and  neither 


24 


mere  adverse  possession  nor  mere  nonuser  will  debar  tlie  city 
from  asserting  its  title  in  behalf  of  the  public. 

In  Village  of  Lee  v.  Harris , 206  111.,  428,  437,  the  court 
said : 

“The  fact  that  a number  of  the  streets  and  alleys  had 
never  been  improved  by  the  village  and  had  been  for  some 
years  within  the  enclosure  of  private  persons  had  no  po- 
tency to  defeat  the  action  of  the  village.  Whether  the  in- 
terests of  the  public  require  that  a street  or  alley  shall 
be  improved  or  that  repairs  thereon  are  necessary  is  com- 
mitted to  the  judgment  and  discretion  of  the  governing 
board  of  the  city  or  village.  Mere  adverse  possession  by 
a lot  owner  of  a portion  of  a public  street,  however  long 
continued,  does  not,  by  virtue  of  the  statute  of  limitations, 
bar  the  right  of  the  public  to  be  restored  to  possession 
of  the  street  to  its  full  width.  * # * Mere  nonuser  of  a 
street  or  alley,  no  matter  how  long  continued,  does  not 
deprive  the  city  or  village,  as  the  representative  of  the 
public,  of  the  right  to  take  possession  thereof  and  im- 
prove the  same.” 

In  City  of  De  Kalb  v.  Luney , 193  111.,  185,  the  court  uses 
the  following  language : 

‘ ‘ Cases  have  been  presented  to  courts  of  equity  where- 
in the  circumstances  were  such  that  right  and  justice  de- 
manded the  public  should  be  deemed  estopped  to  assert 
the  right  to  become  repossessed  of  a street  or  highway 
which  had  long  been  abandoned  to  the  use  of  private  par- 
ties. That  the  possession  of  a portion  of  the  street  or 
highway  has  been  allowed  to  remain  for  any  period  of 
time  in  the  possession  of  the  private  party  is  not  suffi- 
cient to  create  the  estoppel.  Nor  could  any  act  or  acts 
of  abandonment  of  the  street  by  those  in  authority  in  the 
governing  body  of  the  city,  no  matter  though  expressly 
made  and  declared,  operate  to  create  the  estoppel,  for  it 
is  not  within  the  lawful  exercise  of  the  power  of  such 
authorities  to  abandon  the  streets  which  they  hold  for  the 
use  of  the  public,  so  that  by  the  mere  act  of  abandon- 
ment rights  of  the  public  therein  may  be  lost.  It  must 
appear,  to  create  an  equitable  estoppel  against  the  pub- 
lic in  cases  such  as  that  at  bar,  not  only  that  the  city 
authorities  have  long  withheld  the  assertion  of  control 
over  the  portion  of  the  street  in  question,  and  that  private 


25 


parties  have  been,  by  the  acts  of  those  representing  the 
public,  induced  in  good  faith  to  believe  the  street  has 
been  abandoned  by  the  public,  but  also  that  on  the  faith 
of  that  belief  and  with  the  acquiescence  of  those  repre- 
senting the  public  such  private  party  has  erected  struc- 
tures on  the  street,  or  made  improvements  thereon  of 
such  lasting  and  valuable  character  that  to  permit  the 
public  to  assert  the  right  to  repossess  itself  of  the  prem- 
ises would  entail  such  great  pecuniary  loss  and  sacrifice 
upon  the  private  property  holder  that  justice  and  right 
would  demand  that  the  public  be  estopped.’ ’ 

In  accordance  with  the  principles  indicated  in  the  fore- 
going extract,  cities  have  often  been  held  to  be  estopped  from 
asserting  the  right  to  a public  street  when  valuable  improve- 
ments have  been  permitted  to  remain  in  the  street  for  a long 
time  unchallenged. 

In  Peoria  v.  Central  National  Bank,  224  111.,  43,  the  court 
says,  at  page  66: 

“We  agree  fully  with  the  contention  of  the  city  that 
the  statute  of  limitations  as  to  adverse  possession  does 
not  run  against  a municipal  corporation  in  respect  to 
the  property  held  by  it  for  public  use,  and  that  on  the 
ground  of  adverse  possession  alone  the  court  would  not 
be  justified  in  upholding  the  contention  of  the  appellee. 
But  the  city  allowed  private  parties  to  occupy  the  prem- 
ises for  more  than  sixty  years.  Buildings  have  been 
erected  on  the  eastern  part  of  the  premises  on  a part  of 
the  so-called  dedicated  street,  and  have  stood  on  the 
premises  continuously  from  the  early  forties  down  to  the 
present  time.  * * * Docks  were  constructed  at  a very 
large  expense  in  1886  with  the  consent  of  the  city  au- 
thorities. It  would  be  unjust  and  inequitable  to  allow  the 
public  authorities  now  to  interfere.” 

In  Reichert  Milling  Company  v.  Village  of  Freeburg , 217 
111.,  384,  a municipality  was  held  to  be  estopped  from  claiming 
a street  by  reason  of  its  acquiescence  for  nearly  fifty  years  in 
the  occupation  of  the  premises  by  yards,  mill  ponds  and  other 
improvements  privately  owned,  and  the  court  said : 

“The  plat  was  made  in  1854,  and  for  about  fifty  years 
prior  to  the  commencement  of  this  suit  Temple  street 


26 


west  of  Walnut  street  remained  closed  to  the  public. 
While  the  statute  of  limitations  would  not  run  against  the 
village  during  that  time,  the  defense  of  equitable  estoppel 
by  reason  of  an  abandonment  consequent  upon  nonuser 
we  think  properly  invoked  by  the  appellant.  * * * The 
premises  west  of  Walnut  street  were  fenced  and  the  pub- 
lic were  excluded  therefrom  except  through  a gate.  These 
conditions  were  acquiesced  in  by  the  village  for  so  long 
a time  that  to  require  the  appellant  to  now  reconstruct 
its  mill  ponds  and  rearrange  its  yards,  which  would  cost 
it  a considerable  sum  of  money,  would  clearly  be  inequi- 
table.” 

Perhaps  the  latest  expression  of  the  Supreme  Court  on  this 
subject  is  the  following  from  Chicago  v.  Lord , 276  111.,  571 : 

UA  public  highway  may  be  abandoned,  but  the  public 
rights  cannot  be  divested  by  mere  nonuser.  There  must 
not  only  be  a cessation  by  the  public  authorities  to  as- 
sert control  over  the  highway,  but  there  must  be  an  ob- 
struction by  some  private  person  on  the  faith  that  the 
highway  has  been  abandoned,  and  such  obstruction  must 
have  been  acquiesced  in  by  the  public  authorities.  ’ ’ 

It  would  be  impossible  to  reconcile  all  the  Illinois  decisions 
regarding  the  effect  of  adverse  possession,  nonuser,  and 
abandonment  upon  the  status  of  a public  street.  There  are 
cases  in  which  a highway  has  been  held  to  be  abandoned  by 
nonuser,  but  in  most  of  these  the  public  had  adopted  some 
other  thoroughfare,  or  the  question  related  only  to  part  of 
the  width  of  the  highway,  or  elements  of  estoppel  actually 
existed.  A city  is  under  no  obligation  to  improve  a street 
within  any  particular  period  of  time,  and  it  is  believed  that 
there  are  no  well  considered  decisions  in  this  state  justifying 
the  vieAV  that  mere  inaction  will  prevent  a city  from  opening 
and  extending  a public  street  in  which  no  valuable  improve- 
ments have  been  installed  by  private  parties  and  permitted  by 
the  city  to  remain. 

There  have  been  exhibited  to  us  seven  affidavits  made  by 
employees  of  the  Illinois  Central  Railroad  Company  in  Jan- 
uary, 1919,  relating  to  the  area  between  the  Chicago  River 


27 


and  Randolph  street  east  of  Beaubien  court.  These  affidavits, 
if  accepted  as  true,  show  that,  with  unimportant  exceptions, 
for  some  twenty  years  or  more  last  past  the  railroad  com- 
pany has  it  its  own  expense  installed  and  maintained  all  the 
paving,  sewers,  lighting  system,  gas  and  water  mains  ana 
pipes  in  this  territory  and  has  pumped  its  own  water  supply, 
also  maintaining  trespass  signs  in  South  Water  street  at  the 
coal  chute  and  between  its  outfreight  and  fruit  houses. 
The  statements  embodied  in  these  affidavits,  if  conceded 

to  be  accurate,  do  not  seem  sufficient  to  establish  a 

case  for  estoppel  of  the  city  to  enforce  its  rights. 

The  city  was  not  bound  to  improve  its  streets,  or 

extend  its  water  mains  and  other  utilities  upon  the 
same,  until  it  saw  fit  to  do  so.  Failure  of  the  authorities  to 
repair  a road  may  in  certain  cases  be  evidence  that  it  is  not 
regarded  as  a highway,  but  not  unless  the  road  needed  re- 
pair. 

Lewiston  v.  Proctor , 27  111.,  414. 

So  long  as  the  railroad  companies  saw  fit  to  improve  the 
streets  and  to  supply  themselves  with  water  and  light,  in- 
stead of  calling  upon  the  city  for  such  service,  no  reason  is 
perceived  why  the  city  was  under  any  obligations  in  the  mat- 
ter ; and  in  the  absence  of  circumstances  sufficient  to  raise  an 
estoppel,  the  views  from  time  to  time  entertained  by  public 
officials  with  respect  to  the  rights  of  the  city  in  and  over  its 
streets  would  seem  to  be  quite  immaterial. 

It  remains  to  apply  the  foregoing  principles  to  each  of  the 
three  streets  involved  in  the  present  inquiry. 

Lake  Street . 

Lake  street  is  drawn  on  the  plat  of  Fort  Dearborn  Addition 
as  running  east  of  Michigan  avenue  97.3  feet  to  the  lake,  but 
accretions  had  doubtless  occurred  before  1852,  when  the  Illi- 
nois Central  Railroad  was  admitted  to  the  city  by  virtue  of 


28 


the  ordinance  of  June  14,  1852.  The  company  was  given 
right  of  way  to  such  grounds  as  it  might  acquire  north  of 
Randolph  street  “upon  which  said  grounds  shall  be  located 
the  depot  of  said  railroad  within  the  city,  and  such  other 
buildings,  slips  or  apparatus  as  may  be  necessary  or  con- 
venient for  the  business  of  the  company.”  (33  Fed.  Rep.,  741.) 
The  passenger  station  was  in  fact  built  240  feet  north  of  Ran- 
dolph street,  extending  north  505  feet  and  located  about  184 
feet  east  of  Michigan  avenue,  according  to  Roswell  B. 
Mason’s  affidavit  appearing  on  page  282  of  the  printed  record 
in  the  Lake  Front  case.  Eventually  the  city  council  passed  an 
ordinance  September  10,  1855  (Handy  Abst.,  172;  Pr.  Rec., 
631;  33  Fed.  Rep.,  744),  granting  permission  to  the  company 
to  curve  its  tracks  westward  in  order  better  to  approach  the 
passenger  depot.  This  grant  was  upon  condition  “that  the 
said  company  shall  lay  out  upon  its  own  land,  west  of  and 
alongside  its  passenger  house,  a street  fifty  feet  wide,  extend- 
ing from  Water  street  to  Randolph  street,  and  fill  the  same 
up  its  entire  length  within  two  years  from  the  passage  of  this 
resolution.”  This  fifty-foot  street  was  originally  called  Cen- 
tral avenue,  and  later  Beaubien  court. 

The  stipulation  that  it  should  be  laid  out  by  the  company 
“on  its  own  land”  would  not  necessarily  negative  the  exist- 
ence of  a street-crossing  at  Lake  street,  but  as  a matter  of 
fact  the  station  was  built  directly  across  Lake  street  with  the 
open  acquiescence  of  the  city  authorities.  There  was  record- 
ed January  21,  1856,  a plat  of  a resubdivision  by  the  Illinois 
Central  Railroad  Company  of  Block  6 and  part  of  Block  11, 
showing  Lake  street  terminating  at  Central  avenue,  the  west- 
erly line  of  which  is  represented  as  being  130.2  feet 
east  of  Michigan  avenue.  After  the  fire  a copy  of  this  plat 
from  the  company’s  files  was  approved  by  the  Board  of  Pub- 
lic Works,  and  recorded  May  13,  1873.  There  is  now  an  old 
brick  wall  along  the  east  side  of  Beaubien  court  opposite  the 
end  of  Lake  street,  and  substantial  buildings  stand  farther 


29 


east,  across  the  line  of  Lake  street  extended,  between  the 
brick  wall  and  the  lake.  No  evidence  has  been  submitted  of 
any  assertion  during  all  the  intervening  years  by  the  city  or 
the  public  of  rights  in  Lake  street  east  of  Beaubien  court,  and 
in  default  of  such  evidence  the  conclusion  clearly  follows  that 
the  city,  by  condoning  the  operations  of  the  Illinois  Central 
Railroad  Company  and  permitting  valuable  buildings  to  stand 
unchallenged,  has  lost  whatever  right  it  may  once  have  had 
to  extend  Lake  street  in  an  easterly  direction  beyond  its  pres- 
ent terminus. 

South  Water  Street. 

The  shore  cuts  oft  South  Water  street  on  the  plat  of  Fort 
Dearborn  Addition  132  feet  east  of  Michigan  avenue.  At  the 
present  time  the  street  crosses  Beaubien  court,  but  is  ob- 
structed farther  east  by  the  old  stone  in-freight  house  of  the 
Illinois  Central  Railroad  Company,  which  juts  across  the 
street  from  the  north  nearly  to  the  south  line  thereof.  This 
encroachment  is  apparent  upon  casual  inspection,  and  is  also 
shown  on  various  maps  and  diagrams,  some  of  which  are 
hereinafter  referred  to.  From  these,  and  from  an  examina- 
tion of  the  premises,  the  distance  between  the  east  line  of 
Michigan  avenue  and  the  west  wall  of  the  stone  freight  house 
appears  to  be  approximately  560  feet.  There  is  also  a less 
substantial  and  less  extensive  encroachment  upon  the  norther- 
ly part  of  the  street  between  the  in-freight  house  and  Beau- 
bien court. 

The  Committee  of  the  City  Council  on  Streets  and  Alleys, 
S.  D.,  according  to  Document  No.  544  in  the  city  clerk’s  of- 
fice, filed  a report  July  13,  1854,  recommending  construction 
of  a sidewalk  on  both  sides  of  South  Water  street  4 4 between 
Michigan  avenue  and  the  grounds  of  the  Illinois  Central 
Railroad,”  and  it  was  so  ordered.  The  distance  is  not  shown. 
In  1864,  according  to  an  uncertified  copy  of  the  deed  ex- 
hibited to  us,  the  Illinois  Central  conveyed  to  the  Michigan 


30 


Central  Railroad  Company  two  tracts  of  land,  one  of  which 
is  250  feet  east  of  Michigan  avenue  and  runs  from  the  south 
pier  to  the  north  line  of  “ South  Water  street  extended  east- 
erly,” and  the  other  of  which  runs  south  from  that  line  and 
includes  part  of  the  area  that  would  fall  in  South  Water 
street  extended  east  from  Beaubien  court.  Measured  along 
the  projection  of  the  north  line  of  South  Water  street,  the  dis- 
tance indicated  by  this  deed  between  the  east  line  of  Michigan 
avenue  and  the  west  wall  of  the  old  stone  freight  house  is 
562.15  feet.  The  deed  contains  this  clause : 

“It  is  expressly  understood  by  the  parties  hereto  that 
the  said  last  described  tract  of  land  is  conveyed  subject 
to  a right  of  way  which  is  expressly  reserved  for  a high- 
way or  street  which  shall  be  a continuation  of  South 
Water  street  and  of  equal  width  with  South  Water  street 
across  the  same  for  the  convenience  of  the  public,  and 
especially  of  all  doing  business  with  the  Illinois  Central 
Railroad  Company,  always  to  he  kept  open  and  unob- 
structed by  cars  or  engines  standing  there  except  as  may 
be  indispensably  necessary  in  switching  or  connecting 
or  disconnecting  cars.” 

Rufus  Blanchard’s  map  of  Chicago  published  in  1869,  a 
copy  of  which  appears  on  original  page  1196  of  the  printed 
record  in  the  Lake  Front  case,  showed  Lake  street  as  termi- 
nating opposite  the  depot,  hut  South  Water  street  as  running 
past  and  beyond  it.  The  freight  house  appears  farther  east 
as  an  encroachment  on  the  street,  but  with  an  open  passage- 
way south  of  it.  Another  map  attached  to  the  record  in  the 
Lake  Front  case,  original  page  1204,  shows  the  freight  house 
standing  practically  across  South  Water  street,  which  swerves 
irregularly  to  the  south  and  merges  in  the  railroad  yards  be- 
yond; and  the  Morehouse  map,  adopted  as  a part  of  the  de- 
cree in  the  Lake  Front  case,  exhibits  substantially  similar 
conditions. 

As  regards  the  stretch  between  Beaubien  court  and  the 
freight  house  the  reservation  for  a “highway  or  street”  in  the 
above-quoted  clause  of  the  deed  to  the  Michigan  Central 


31 


Bailroad  Company  recognizes  or  creates  a right  of  the  pub- 
lic to  the  use  of  the  street,  and  no  evidence  of  a decisive 
character  has  been  produced  to  show  an  abandonment  of  this 
part  of  the  street  or  an  estoppel  to  assert  the  rights  of  the 
public  therein. 

It  is  believed  that  the  city  would  be  estopped  from  re- 
moving the  end  of  the  freight  house  as  an  obstacle  to  traffic. 
There  is,  however,  at  the  present  time  an  open  thoroughfare 
which  veers  to  the  south  so  as  to  clear  the  end  of  the  freight 
house  and  is  used  as  an  extension  of  South  Water  street  to 
the  railroad  yards  beyond.  While  this  passage  could  not  be 
regarded  as  a true  extension  of  South  Water  street  arising 
solely  by  operation  of  law  from  the  natural  or  artificial  ad- 
vance of  the  shore  line,  it  might  well  be  deemed  a practical 
continuation  of  South  Water  street,  either  by  reason  of  its 
having  been  adopted  as  such  by  common  consent,  or  by  virtue 
of  long  use  by  the  public  under  a claim  of  right. 

Where  there  is  a regularly  traveled  and  unobstructed  road 
across  an  open  tract  of  land  used  by  the  public  without  permis- 
sion from  anyone  for  a sufficient  length  of  time  a right  of  way 
is  established  by  prescription. 

Phillips  v.  Leininger,  280  111.,  132. 

Thorworth  v.  Scheets,  269  111.,  573. 

Hansen  v.  Green,  275  111.,  221. 

1 Middletown  v.  Glenn,  278  111.,  149. 

“ Where  the  proof  shows  uninterrupted  use  by  the  pub- 
lic of  an  alleged  street  or  alley  for  the  period  necessary  to 
establish  a street  or  alley  by  prescription,  the  burden 
is  on  the  owner  of  the  land  to  show  that  such  use  was 
under  some  license,  indulgence  or  special  contract  incon- 
sistent with  the  claim  of  right  by  the  public.,, 

Wiehe  v.  Pein,  281  111.,  130,  141. 

Law  v.  Neola  Elevator  Co.,  281  111.,  143,  149. 

Thorworth  v.  Scheets,  269  111.,  573. 

Phillips  v.  Leininger,  280  111.,  132,  140. 


32 


The  Supreme  Court  of  Illinois  has,  it  is  true,  often  stated, 
as  in  Chicago  v.  Chicago,  Rock  Island  and  Pacific  Railway 
Company,  152  111.,  561,  that  in  order  to  establish  a way  by  pre- 
scription the  use  “must  have  been  adverse,  under  a claim  of 
right,  exclusive,  continuous,  uninterrupted,  and  with  the 
knowledge  and  acquiescence  of  the  owner  of  the  land  in  or 
over  which  the  easement  is  claimed.  ” Again,  in  Village  of 
Peotone  v.  Illinois  Central  R.  R.  Co.,  224  111.,  101,  the  court, 
while  holding  that  a public  right  had  in  that  case  been  ac- 
quired in  fact  as  against  the  company,  “conceded  that  where 
grounds  are  near  to  a railroad  depot  and  freight  yards,  more 
pronounced  acts  on  the  part  of  the  public  should  be  required 
before  the  conclusion  is  reached  that  the  public  has  acquired 
the  right  to  the  premises  as  a highway  than  might  under  other 
or  ordinary  circumstances  be  required.”  It  would  be 
difficult  to  harmonize  all  of  the  decisions,  chiefly  because  each 
case  stands  on  its  own  facts  as  determined  by  the  entire  evi- 
dence, but  the  later  decisions  above  cited  indicate  a clear  ten- 
dency to  recognize  public  travel  for  the  statutory  period  as 
sufficient  to  raise  the  presumption  that  a public  highway  ex- 
ists. 

There  are  numerous  cases  involving  deviations  by  the  pub- 
lic from  a legal  highway,  either  to  avoid  obstacles  or  for 
other  ends  of  convenience,  and  the  law  is  that  travel  over  the 
substituted  road  will  in  due  course  of  time  result  in  an  aban- 
donment of  the  original  road  or  street  as  established  by  law 
and  the  acquisition  of  right  and  title  to  the  new  thorough- 
fare. 

Gruhe  v.  Nichols,  36  111.,  92. 

Peoria  v.  Johnston,  56  111.,  45,  51. 

Champlin  v.  Morgan , 20  111.,  181. 

Galhrdith  v.  Littiech , 73  111.,  209. 

Rrockhausen  v.  Rockland,  137  111.,  547. 

Highway  Commissioners  v.  Kinahan,  240  111.,  593. 

People  v.  C.  C.  C.  & St.  L.  Raihvny  Co.,  269  111.,  555. 


33 


If  the  public  street  extends  to  the  freight  house,  the  right 
of  the  city  to  go  farther  east  by  adopting  the  road  as  now 
traveled  depends  on  the  nature  of  the  use  and  occupation  of 
the  same  over  a term  of  years  under  circumstances  not  suf- 
ficiently disclosed  in  the  documents  submitted  for  inspection. 
It  is  said  that  a right  of  way  cannot  be  acquired  by  the  pub- 
lic over  private  property  when  the  way  is  used  only  by  per- 
sons resorting  to  it  for  purposes  connected  with  the  business 
of  the  owner.  No  such  limited  use  is  affirmatively  shown  by 
the  documents  or  other  evidence  examined.  The  law  does  not 
fix  the  number  of  persons  who  must  travel  upon  a road  to 
establish  its  existence,  and  a highway  may  be  acquired  by 
prescription  even  though  it  is  a mere  cul-de-sac  with  a dead 
end. 

37  Cyc.,  22. 

State  v.  Rixie , 50  Wash.,  676;  97  Pac.,  804. 

Gillespie  v.  Duling,  41  Ind.  App.,  217 ; 83  N.  E.,  728. 

Many  decisions  have  been  cited  in  which  the  fact  that  a 
way  over  private  land  led  to  no  point  beyond  has  been  re- 
ferred to  as  one  of  the  circumstances  leading  to  denial  of 
the  existence  of  a public  highway.  They  are  entitled  to  con- 
sideration, but  fail  to  establish  any  fixed  rule  of  law  which 
would  necessarily  conclude  the  rights  of  the  city  in  this  case. 

The  entire  evidence  thus  far  available  does  not  justify  a 
positive  opinion  as  to  the  legal  status  of  South  Water  street 
east  of  Beaubien  court,  but  the  weight  of  the  authorities  and 
of  the  evidence  supports  the  conclusion  that  the  city  has  the 
right  to  extend  and  occupy  South  Water  street  in  a direct  ex- 
tension east  of  Beaubien  court  for  a distance  of  381.95  feet, 
and  by  a diversion  along  the  line  of  the  traveled  roadway  east 
of  that  point  to  Lake  Michigan,  the  exact  location  and  dimen- 
sions of  such  roadway  being  dependent  on  evidence  not  now 
available  to  us. 


34 


River  Street. 

The  distance  along  River  street  from  Michigan  avenue 
to  the  lake,  as  it  appears  on  the  plat  of  Fort  Dearborn  Addi- 
tion, is  about  232  feet.  River  street  lay  within  the  marine 
hospital  reservation,  and  had  not  come  under  full  jurisdic- 
tion of  the  city  when,  by  a deed  already  mentioned  bearing 
date  of  October  14,  1852  (Graham  Report,  p.  81)  a copy  of 
which,  re-recorded  after  the  fire,  may  be  seen  in  the  Record- 
er’s office  in  Book  647  of  Records,  page  505,  conveyed  to  the 
Illinois  Central  Railroad  Company  a tract  of  land  250  feet  east 
of  Michigan  avenue,  and  bounded  on  the  north  and  east  by  the 
river  and  the  lake.  A plat  was  attached.  The  area  thus 
granted  stands  squarely  across  River  street,  but  it  is 
doubtful  whether  the  conveyance  in  itself  would  have 
had  the  effect  of  terminating  the  street  at  that  line. 
If  River  street,  which  appears  on  the  Government  plat 
as  a highway  leading  to  navigable  water,  was  in  fact  a 
street,  it  would  by  operation  of  law  have  extended  across 
the  accretions  to  the  new  shore  line  before  and  at  the  time 
when  these  accretions  were  conveyed  to  the  railroad  com- 
pany. The  decision  in  United  States  v.  Chicago,  7 How., 
185,  was  merely  that  the  city  could  not  open  up  Michigan 
avenue  and  the  other  platted  streets  across  the  hospital  re- 
serve while  still  occupied  as  such.  The  title  to  the  streets 
may  have  remained  in  abeyance  until  the  land  was  sold,  but 
the  dedication  cannot  be  regarded  as  a nullity,  since  it  be- 
came effective  eventually.  After  the  Government  occupa- 
tion ceased  the  streets  became  public  and  no  sufficient  reason 
is  apparent  for  distinguishing  in  this  respect  between  the 
232  feet  of  River  street  actually  shown  upon  the  plat  and  the 
extension  of  the  same  by  accretion.  If,  as  seems  probable, 
the  United  States  could  not  have  destroyed  Michigan  ave- 
nue by  selling  and  conveying  the  hospital  reserve  to  private 
purchasers  as  an  entire  tract,  it  could  not  by  conveyance  to  a 


35 


private  corporation  destroy  River  street  either  as  originally 
laid  out  upon  the  plat  or  as  extended  by  accretion.  All  par- 
ties, indeed,  recognize  the  extension  of  River  street  over  ac- 
cretions for  a distance  of  18  feet  from  the  terminus  as  shown 
by  the  plat  to  the  250-foot  line.  If  River  street  extended 
across  the  hospital  reserve  to  that  line  in  1852,  it  must  have 
extended  beyond  to  the  shore. 

It  is  true  that  in  1852,  when  the  deed  was  made  to  the  Illi- 
nois Central  Railroad  Company,  the  Government  had  not  re- 
linquished its  control  of  the  parts  of  the  platted  streets 
crossing  the  hospital  reserve.  In  a communication  to  Sec- 
retary of  War  Jefferson  Davis  dated  September  26,  1855, 
relative  to  certain  lots  which  had  been  granted  to  Jean  Bap- 
tiste Beaubien  by  Congress,  Colonel  Graham  recommended 
that  he  be  authorized  to  open  Michigan  avenue  and  River 
street  “to  the  extent  laid  down ’ ’ on  the  plat  of  Fort  Dear- 
born Addition,  “and  that  the  municipal  jurisdiction  over  the 
said  portions  of  the  said  streets  be  surrendered  to  the  cor- 
porate authorities  of  the  City  of  Chicago  so  soon  as  the 
public  buildings  thereon  can  be  disposed  of  and  the  public 
property  stored  therein  moved  out”  (Graham  report,  p.  78). 
It  may  be  conceded  that  neither  he  nor  the  municipal  author- 
ities at  that  time  regarded  River  street  as  extending  across 
the  accretions  deeded  to  the  railroad  company.  Ignorance 
of  their  rights,  however,  would  not  alone  have  debarred  the 
city  officials  from  asserting  those  rights  when  ascertained. 

The  same  may  be  said  of  certain  other  proceedings  sup- 
posed to  show  acquiescence  in  the  claims  of  the  railroad 
company  with  reference  to  the  limits  of  River  street. 
An  ordinance  of  August  11,  1864  (Document  No.  356  in  the 
city  clerk’s  office,  referred  to  in  the  Inman  report),  requires 
River  street  to  be  graded  and  planked  “from  Michigan  ave- 
nue east  to  the  lands  of  the  Illinois  Central  Railroad  Com- 
pany.” The  accompanying  report  shows  that  the  improve- 
ment was  adjacent  to  Block  5,  presumably  a distance  of  250 


36 


feet.  Document  No.  1255,  being  an  approved  report  from  the 
Committee  on  Wharves  and  Public  Grounds  under  date  of  May 
3,  1867,  on  the  application  of  A.  E.  Goodrich  to  lease  wharfing 
privileges  “on  that  part  of  River  street  lying  east  of  Michigan 
avenue  and  west  of  the  grounds  of  the  Michigan  Central 
Railroad,  ” states  that  the  distance  is  250  feet  according  to 
the  record,  and  that  the  width  of  the  space  from  the  south 
line  of  the  street  to  the  north  face  of  the  dock  is  67  feet.  By 
another  ordinance  adopted  October  24,  1879  (Document  No. 
753),  River  street  was  ordered  to  be  paved  from  Wabash  ave- 
nue to  a line  250  feet  east  of  Michigan  avenue. 

The  deed  of  March  22,  1864,  hereinabove  referred  to  in  the 
discussion  of  the  status  of  South  Water  street,  purports  to 
be  a conveyance  from  the  Illinois  Central  Railroad  Company 
to  the  Michigan  Central  Railroad  Company  of  a tract  of  land 
250  feet  east  of  Michigan  avenue  extending  south  from  the 
pier,  but  subject  to  a private  right  of  way  forty  feet  wide  at 
the  north  end  thereof.  The  city  was  not  a party  to  this  con- 
veyance and  is  not  bound  by  its  terms  or  recitals. 

A more  serious  question,  perhaps,  arises  out  of  the  terms 
of  an  agreement  of  September  26,  1855,  formally  entered 
into  by  and  between  Jean  Baptiste  Beaubien,  the  Illinois 
Central  Railroad  Company,  the  City  of  Chicago,  and  the 
United  States  of  America  (Graham  report,  p.  79).  This  in- 
strument was  designed  to  set  at  rest  certain  controversies 
about  the  line  defining  the  south  limit  of  excavation  for  the 
improvement  of  navigation  of  the  Chicago  River. 

The  mayor  and  common  council  of  the  City  of  Chicago  had 
addressed  to  the  Senate  of  the  United  States  January  15, 
1852,  a memorial  asking  permission  to  straighten  the  chan- 
nel of  the  river  by  cutting  off  and  excavating  a part  of  the 
hospital  reserve  “as  per  the  red  line  marked  on  the  accom- 
panying map.”  (Graham  report,  p.  83.)  Congress  accord- 
ingly passed  an  act  July  21,  1852,  authorizing  the  corporate 


37 


authorities  of  the  City  of  Chicago  to  excavate  such  portion 
of  the  reservation,  “not  exceeding  the  limits  described  in 
their  memorial,”  as  might  be  necessary  according  to  the  plan 
set  forth  in  said  memorial,  for  the  improvement  of  the  navi- 
gation of  the  Chicago  River  (Graham  report,  p.  83).  There 
was  nothing  in  the  act  to  fix  the  limits  of  excavation  except 
the  “red  line”  marked  on  the  map  accompanying  the  me- 
morial. 

In  the  deed  of  October  14,  1852,  from  the  United  States 
to  the  Illinois  Central  Railroad  Company,  to  which  a map 
was  annexed,  the  west  line  of  the  grant  was  described  as  a 
line  250  feet  east  of  Michigan  avenue  running  north  to  the 
piers  on  the  Chicago  River  at  a point  marked  “2”  on  said 
map,  and  the  north  boundary  was  described  as  a line  running 
with  said  piers  from  said  point  “2”  eastward  to  the  low- 
water  mark  of  Lake  Michigan,  “subject,  however,  to  the 
right  of  the  City  of  Chicago  to  make  an  excavation  for  im- 
proving the  navigation  of  the  Chicago  River,”  in  accordance 
with  the  Act  of  July  21,  1852,  “without  any  claim  for  indem- 
nity or  reimbursements  of  any  part  of  the  price  above  men- 
tioned in  consequence  of  such  excavations  if  made.”  The 
railroad  company  was  therefore  a party  vitally  interested  in 
the  location  of  the  “red  line”  of  the  memorialists. 

Before  further  action  was  taken,  Congress  by  an  act  ap- 
proved August  1,  1854,  entitled  “An  Act  for  the  relief  of 
Jean  Baptiste  Bcaubien,”  authorized  the  commissioner  of 
the  general  land  office  to  issue  patents  to  Beaubien  for  certain 
described  lots  in  Port  Dearborn  Addition  to  Chicago,  in- 
cluding all  that  part  of  Lots  8 and  9 in  Block  2 south  of  the 
line  of  excavation  authorized  by  the  Act  of  July  21,  1852; 
by  reason  whereof  Beaubien  was  also  interested  in  the  loca- 
tion of  the  line  of  excavation. 

Col.  Graham,  who  was  sent  to  Chicago  in  1854,  was  in- 
structed to  fix  the  boundaries  of  the  lots  granted  to  Beau- 


38 


bien.  He  encountered  difficulties.  In  the  first  place  he  found 
that  in  any  settlement  of  the  southerly  limit  of  exfcavation 
the  Illinois  Central  Railroad  Company  had  rights  that 
must  be  reckoned  with,  and  in  the  second  place  he  discovered 
that  on  the  map  accompanying  the  meiporial  of  January  15, 
1852,  there  appeared  two  red  lines  and  one  blue  line,  and 
that  while  none  of  the  lines  were  accurate  the  blue  line  more 
nearly  approximated  the  presumptive  limits  of  excavation 
than  either  of  the  red  lines.  He  proceeded  accordingly  to 
seek  an  adjustment  among  the  several  parties  in  interest  and 
after  extended  negotiations  brought  about  the  execution  of 
the  above  mentioned  formal  agreement  of  September  26,  1855, 
fixing  a line  of  excavation  of  which  in  his  report  to  the  War 
Department  (p.  33)  he  speaks  as  follows: 

“This  line,  which  is  to  give  a new  shore  on  the  south 
to  a portion  of  Chicago  River,  while  it  will  render  the 
turns  in  the  river  easy  for  shipping,  preserves  a uni- 
form width  of  not  less  than  200  feet  for  the  navigable 
channel,  and  secures,  for  the  accommodation  of  general 
commerce,  the  whole  of  River  street,  which  the  most 
southern  red  line  of  the  memorialists’  map  (A)  wrould 
have  almost  entirely  destroyed.  Another  advantage  to 
commerce  is,  that  the  northern  margin  of  that  portion  of 
River  street  which  runs  east  and  west  will  coincide  with 
the  margin  of  the  river,  and  thus,  by  precluding  the  in- 
terposition of  buildings  between  the  shore  and  that  street, 
will  afford  valuable  facilities  for  discharging  cargoes 
from  the  shipping.  The  most  northern  red  line  of  map 
A would  have  left  a very  narrow  strip  of  land  between 
River  street  and  the  shore  of  the  river,  not  wide  enough 
for  building  lots,  but  which  would  have  cut  off  from  the 
shipping  the  facilities  of  discharging  their  cargoes  upon 
the  northern  margin  of  this  street.” 

The  agreement  itself  (Graham  report,  p.  79)  begins  with  a 
recital  that  there  is  doubt  and  uncertainty  in  regard  to  the 
extent  t)f  the  ground  which  may  be  excavated  under  the  Act 
of  July  21,  1852,  arising  from  an  ambiguity  in  the  map  which 
accompanied  the  memorial  of  January  15,  1852,  which  am-, 
biguity  likewise  affects  the  interest  of  the  Illinois  Central 


39 


Kailroad  Company  under  the  deed  of  October  14,  1852,  and 
the  interest  of  Jean  Baptiste  Beaubien  under  the  Act  of  Au- 
gust 1,  1854;  also  that  after  full  consultation  with  the  par- 
ties Col.  Graham  has  marked  out  the  following  as  the  line 
or  limit  of  the  excavation  to  be  made  by  the  city  authorities 
and  has  designated  the  same  by  the  red  line  x A B y on  the 
accompanying  map,  called  “Map  G No.  17,’ ’ as  follows  (de- 
scribing it)  : 

A blue  print  purporting  to  be  a copy  of  Map  G 17  has  been 
examined  in  the  office  of  the  United  States  Engineer  at  Chi- 
cago, showing  the  signatures  of  the  parties,  and  a line 
marked  “111.  Cent.  R.  R.  Co.’s  boundary  under  deed  from 
Secy,  of  War  of  Oct.  14,  1852.”  This  line  extends  from  the 
southeast  corner  of  Lot  5 in  Block  5 north  across  the  pro- 
posed line  of  excavation  to  the  old  pier,  crossing  River  street 
without  any  break  250  feet  east  of  Michigan  avenue,  where 
River  street  appears  to  terminate.  The  agreement  describes 
the  line  of  excavation  as  beginning  at  point  “x”  at  the  in- 
terior angle  of  the  south  pier,  and  running  thence  westerly 
270  feet  in  prolongation  of  the  interior  or  river  face  of  said 
south  pier  to  point  A,  thence  westerly  565  feet  on  another 
straight  line  A B “coinciding  in  direction  with  the  north  mar- 
gin of  River  street  and  occupying  the  said  margin  of  the 
said  street  so  far  as  it  is  laid  down  on  the  plat  or  plan  of 
the  City  of  Chicago  east  of  its  junction  with  Michigan  ave- 
nue. ’ ’ 

After  the  aforesaid  recitals  the  several  parties,  “in  consid- 
eration of  the  benefits  to  be  derived  therefrom  by  all  and  sin- 
gular of  the  said  parties,  consent,  ratify  and  confirm  the  afore- 
said line  and  limit  of  excavation  determined  as  above  stated,” 
in  fulfillment  of  the  Acts  of  July  1,  1852,  and  August  1,  1854, 
and  the  deed  of  October  14,  1852,  “as  bounding  and  defin- 
ing the  extent  of  the  rights  of  all  and  each  of  the  aforesaid 
parties  in  interest  under  the  aforesaid  acts  of  Congress  and 
deed  of  sale.” 


40 


It  is  vigorously  contended  that  this  contract  of  September 
26,  1855,  is  a final  determination  of  the  easterly  limit  of  River 
street  at  a line  250  feet  east  of  Michigan  avenue  as  repre- 
sented on  the  Map  G 17 ; that  the  agreement  confirms  the 
deed  to  the  Illinois  Central  Railroad  Company  “as  bounding 
and  defining  the  extent  of  the  rights  of  each  and  all  of  the 
aforesaid  parties  in  interest  under  the  aforesaid  Acts  of 
Congress  and  deed  of  sale”;  and  that  by  necessary  conse- 
quence it  establishes  the  terminus  of  River  street  at  the 
line  drawn  across  it  250  feet  east  of  Michigan  avenue.  No 
such  effect  can  be  given  to  the  instrument  by  way  of  formal 
contract.  It  does  not  confirm  or  ratify  the  map  as  defining 
the  rights  of  the  parties  under  the  deed,  but  only  “the  line  and 
limit  of  excavation  determined  as  above  stated,”  that  is  to 
say,  determined  by  the  description  and  map.  Any  other 
conclusion  would  require  the  contract  to  mean  that  a line 
forming  the  north  boundary  of  the  tract  was  confirmed  as 
fixing  the  west  boundary.  The  contract  as  such  con- 
templates no  determination  of  any  rights  whatsoever 
of  the  Illinois  Central  Railroad  Company  except  the 
delimitation  of  the  area  which  the  City  of  Chicago  was  enti- 
tled to  excavate  off  the  north  side  of  its  property  for 
the  purpose  of  straightening  the  channel  of  the  river. 
The  line  appearing  on  the  Map  G 17  as  the  terminus  of 
River  street  suggests  that  the  parties  did  not  at  that 
time  regard  the  street  as  extending  farther  east,  but 
its  legal  effect,  if  any,  must  rest  on  some  doctrine  of  recog- 
nition, acquiescence  or  estoppel  and  not  on  contract.  The 
elements  of  estoppel  are  wanting,  and  enough  has  been  said 
under  an  earlier  head  of  this  opinion  to  justify  the  view  that, 
in  the  absence  of  valuable  improvements  blocking  traffic,  the 
city  would  not  necessarily  lose  its  rights  beyond  the  line  250 
feet  east  of  Michigan  avenue  through  mere  recognition  of 
that  line  as  the  terminus  of  River  street  under  a mistaken 
conception  of  the  law. 


41 


River  street  is  delineated  oil  various  maps  as  extend- 
ing along  the  river  to  Slip  A,  immediately  east  of  the  old  stone 
freight  house,  and  there  turning  south,  or  connecting  with 
a thoroughfare  running  south,  between  the  old  freight  house 
and  Slip  A,  to  South  Water  street.  See  the  Morehouse  map, 
the  1887  map  at  original  page  1204  of  the  printed  record,  and 
the  blue  print  purporting  to  show  present  occupancy.  A paved 
roadway  now  runs  in  fact  from  Michigan  avenue  to  the  north- 
west corner  of  the  old  stone  freight  house,  where  further  pas- 
sage to  the  east  is  barred  by  structures  apparently  consti- 
tuting part  of  the  Goodrich  Transit  Company’s  docking  facili- 
ties. At  this  terminus  there  is  an  outlet  to  South  Water  street 
along  what  appears  to  be  a private  roadway  paved  with 
granite  blocks  west  of  and  contiguous  to  the  stone  freight 
house.  The  west  wall  of  the  freight  house  seems  to  be  here, 
as  at  South  Water  street,  about  560  feet  east  of  Michigan 
avenue.  Under  what  circumstances  the  Goodrich  Transit 
Company  structures  were  erected,  and  how  long  they  have 
stood,  are  questions  upon  which  no  evidence  has  been  sub- 
mitted. They  block  access  to  Slip  A,  which  is  represented  on 
certain  city  atlases  as  approximately  722  feet  east  of  Michigan 
avenue. 

Independently  of  other  considerations,  the  existence  of  a 
public  street  extending  to  the  freight  house  might  be  shown 
by  actual  occupation  and  public  travel  for  a period  of  years, 
under  circumstances  not  inherently  improbable,  but  not  es- 
tablished by  evidence  now  available;  and  such  occupation 
and  travel,  before  the  erection  of  the  Goodrich  structures,  may 
have  extended  as  far  east  as  Slip  A.  The  effect  of  those  struc- 
tures upon  any  public  right  of  travel  previously  existing  would 
probably  depend  on  their  character,  their  permanence  and  the 
circumstances  attending  their  erection. 

Thus  far  the  discussion  has  been  confined  to  particular 
arguments  considered  singly,  and  it  appears  that,  while  there 
are  many  arguments  against  the  right  of  the  city  to  extend  or 


42 


occupy  River  street  beyond  the  line  250  feet  east  of  Michigan 
avenue,  no  one  of  these  arguments  taken  by  itself  is  unanswer- 
able or  necessarily  conclusive.  Under  these  circumstances  it 
might  be  deemed  permissible  to  resolve  all  doubts  in  favor  of 
the  city.  It  does  not  follow,  however,  because  each  of  several 
obstacles  may  be  surmounted,  that  all  of  them  together  can  be 
successfully  overcome.  In  passing  upon  a problem  which  in- 
volves so  many  doubtful  elements  of  law  and  fact,  due  regard 
must  be  had  to  their  cumulative  effect,  and,  furthermore,  any 
conclusion  must  rest  finally  upon  a balance  of  probabilities. 
On  the  whole  evidence,  considered  in  the  mass,  the  only  opin- 
ion I feel  justified  in  expressing  with  respect  to  River  street 
is  that  the  city  may  have  the  right  to  an  extension  of  the  street 
more  than  200  feet  east  of  Michigan  avenue,  but  that  there 
are  serious  obstacles  to  the  establishment  of  such  a right. 

II. 

Title  to  Slips. 

The  five  slips  with  reference  to  which  an  opinion  is  asked  are 
known  as  Slips  A,  B,  C,  D and  E,  and  extend  into  the  yards 
or  between  the  docks  of  the  Illinois  Central  Railroad  Company 
east  of  Michigan  avenue  and  north  of  Randolph  street.  Three 
of  these  run  south  from  the  Chicago  River.  Slip  A,  as  already 
indicated,  is  about  722  feet  east  of  Michigan  avenue.  Farther 
east  are  Slips  B and  C,  the  latter  immediately  west  of  a pier 
stated  on  the  Morehouse  map  to  have  been  built  in  1867,  the 
east  line  of  which  is  the  old  breakwater  constructed  by  the 
railroad  company.  Beyond  this  breakwater  and  jutting  east- 
ward into  the  lake  are  three  extensive  piers  numbered  from 
north  to  south  1,  2 and  3.  According  to  the  Morehouse  map 
Pier  1 was  built  in  1872  and  1873,  Pier  3 in  1880,  and  Pier  2 
in  1881.  Slip  D is  the  basin  between  Piers  1 and  2,  and  Slip 
E is  the  basin  between  Piers  2 and  3.  Each  of  them  opens 
directly  into  Lake  Michigan. 


43 


It  is  understood  that  the  Illinois  Central  Railroad  Company 
desires  a permit  to  fill  up  one  or  more  of  these  slips,  thereby 
converting  them  into  a part  of  its  yards  and  docks.  Section  1 
of  Article  V of  the  City  and  Village  Act  empowers  the  city 
council  “to  regulate  and  control  the  use  of  public  and  private 
landing’  places,  wharves,  docks  and  levees”;  also  “to  control 
and  regulate  the  anchorage,  moorage  and  landing  of  all  water 
craft  and  their  cargoes  within  the  jurisdiction  of  the  corpora- 
tion”; also  “to  make  regulations  in  regard  to  use  of  harbors, 
towing  of  vessels,  opening  and  passing  of  bridges”;  and  “to 
appoint  harbor  masters  and  define  their  duties.” 

Chapter  XXXVI  of  the  Chicago  Code  of  1911  relates  to 
“harbor,  harbor  master,  bridges,  wharves  and  vessels. Sec- 
tion 1097  provides  that  the  harbor  shall  include  the  Chicago 
River  and  its  branches,  all  slips  adjacent  to  and  connecting 
with  the  Chicago  River,  all  piers  and  basins  and  the  waters 
of  -Lake  Michigan,  including  all  breakwaters,  piers  and  per- 
manent structures  therein  for  a distance  of  three  miles  from 
the  shore  between  the  north  and  south  lines  of  the  city  ex- 
tended; and  that  said  harbor  shall  be  subject  to  the  control 
of  the  harbor  master  under  the  supervision  and  according 
to  the  directions  of  the  commissioner  of  public  works,  and  the 
use  thereof  shall  be  governed  by  the  ordinances  of  the 
city.  The  amendment  of  October  28,  1912,  to  Section  1097 
(Council  Proceedings,  page  2141),  does  not  change  the  above- 
recited  provisions  thereof.  Section  1098  provides  for  the  ap- 
pointment of  a harbor  master.  In  and  following  Section  1125 
it  is  provided  that  every  owner,  lessee  or  person  in  posses- 
sion of  premises  abutting  on  the  harbor  shall  keep  the  wharves 
and  docks  in  good  repair,  and  the  harbor  master  is  directed 
to  require  all  persons  engaged  in  repairing,  renewing,  altering 
or  constructing  any  dock  to  produce  a permit  from  the  De- 
partment of  Public  Works  specifying  the  character  and  loca- 
tion of  the  work  to  he  done,,  in  default  whereof  it  is  the 
harbor  master’s  duty  to  stop  the  work  and  arrest  the  per- 


44 


sons  unlawfully  engaged  therein,  and  the  offenders  are  also 
required  to  undo  the  work  thus  unlawfully  prosecuted.  No 
person  shall  drive  or  place  any  pile  or  piles,  stone,  timber, 
earth  or  other  obstruction  in  the  harbor  of  the  city,  or  build, 
construct  or  repair  any  dock  therein  without  written  permit 
from  the  commissioner  of  public  works.  All  encroachments 
upon  the  harbor  lines  are  to  be  reported  by  the  harbor  master 
to  the  city  engineer,  and  such  action  shall  be  taken  as  may  be 
necessary  to  cause  the  removal  of  such  obstruction  or  en- 
croachment. 

The  ordinances  of  November  20,  1911  (Council  Proceedings, 
pages  1787  and  1788)  establishing  Harbor  Districts  Nos.  1 and 
2,  do  not  confine  the  Chicago  harbor  within  the  limits  of  the 
districts  thereby  created,  nor  derogate  from  the  authority  of 
the  city  over  the  harbor  as  already  existing. 

The  slips  east  of  Michigan  avenue  and  north  of  Randolph 
street  are  part  of  Chicago  harbor.  Harbor  District 
No.  1,  as  defined  by  the  ordinance,  includes  among  other  things 
the  Chicago  River  and  all  the  waters,  submerged  lands  and 
made  lands  within  the  river.  Harbor  District  No.  2 is  bounded 
on  the  west  by  a line  running  along  the  lake  shore  between  the 
south  line  of  Randolph  street  extended  and  the  Chicago  River. 
Each  of  the  ordinances  was  accompanied  by  a plat  which  was 
made  a part  thereof.  These  plats  are  on  file  in  the  office  o£ 
the  city  clerk.  Certain  parts  of  them  are  colored  red,  evidently 
for  the  purpose  of  defining  the  harbor  district.  Upon  the  plat 
of  Harbor  District  No.  1 the  Chicago  River  is  colored  red,  to- 
gether with  the  slips  opening  from  the  river.  The  plat  of 
Harbor  District  No.  2 shows  a red  line  running  from  the  ex- 
tension of  Randolph  street  north  to  the  Chicago  River  along 
the  front  of  the  Illinois  Central  Company’s  piers,  but  the  slips 
between  these  piers  are  not  colored  red.  It  has  been  argued 
that  the  plat  of  Harbor  District  No.  2 shows  that  Slips  D and 
E are  excluded  therefrom.  Whether  such  be  the  case  or  not  is 


immaterial.  The  harbor  districts  do  not  define  the  limits  of 
Chicago  harbor. 

It  thus  appears  that  these  slips  are  under  the  jurisdiction 
of  the  harbor  master,  and  that  a city  permit  is  required 
by  the  police  regulations  before  any  slips  can  be  filled  up. 
Such  permit  could  not  lawfully  be  withheld  if  the  company 
had  a clear  right  to  fill  up  the  slips,  and  on  one  occasion  the 
Illinois  Central  Railroad  Company  contended  that  the  fore- 
going provisions  of  the  city  ordinances  were  void  under  the 
Constitution  of  the  United  States  as  an  impairment  of  the 
rights  and  privileges  conferred  upon  it  by  its  charter.  The 
Supreme  Court  of  the  United  States  ruled  that  if  the  charter 
were  in  fact  to  be  construed  as  giving  the  company,  as  claimed, 
a right  to  fill  in  the  bed  of  the  lake  for  purposes  of  building 
engine  houses  and  other  works,  the  city  ordinances  might 
be  condemned  as  an  unlawful  invasion  of  that  right  and  as 
violative  of  the  Federal  Constitution.  But  the  court  went 
further  and  held  that  the  company’s  charter,  the  provisions 
of  which  are  elsewhere  herein  set  forth,  gave  the  company  no 
such  right  as  it  asserted  and  hence  that  the  harbor  ordinances 
are  a valid  and  legitimate  exercise  of  the  police  power. 

Illinois  Central  Railroad  Company  v.  Chicago , 176 
U.  S.,  646. 

In  the  following  argument  some  of  the  facts  already  stated 
are  repeated  for  the  sake  of  clearness. 

The  Illinois  Central  Railroad  Company  was  incorporated  by 
act  of  the  General  Assembly  of  the  State  of  Illinois,  approved 
February  10,  1851.  (Private  Laws,  1851,  page  61.)  Section  3 
provided  that  the  corporation  might  appropriate  to  its  sole 
use  and  control,  for  the  purposes  contemplated  in  the  act,  a 
right  of  way  200  feet  wide,  and  might  enter  upon,  take  pos- 
session of  and  use  any  lands,  streams  and  materials  for  the 
location  of  depots,  construction  of  bridges,  station  grounds, 
engine  houses,  shops  and  other  buildings  “ necessary  for  the 


46 


construction,  completing,  altering,  maintaining,  preserving 
and  complete  operation  of  said  road,”  and  that  “all  such 
lands,  waters,  materials  and  privileges  belonging  to  the  state 
are  hereby  granted  to  said  corporation  for  said  purposes.” 
Section  8 makes  the  proviso  that  “nothing  in  this  act  contained 
shall  authorize  said  corporation  to  make  a location  of  their 
track  within  any  city  without  the  consent  of  the  common  coun- 
cil of  said  city.” 

Such  consent  was  given  by  the  city  council  in  and  by  the 
ordinance  of  June  14,  1852.  (Special  ordinances,  1915  ed.,  page 
861.)  Permission  was  granted  to  the  company  to  construct 
within  the  city  and  along  the  margin  of  the  lake  a railroad 
northerly  to  such  grounds  as  the  company  might  acquire  north 
of  Randolph  street  in  Fort  Dearborn  Addition,  upon  which 
grounds  it  was  ordained  that  there  should  be  located  the  depot 
and  such  other  buildings,  slips  or  apparatus  as  might  be  neces- 
sary and  convenient  for  the  business  of  the  company.  Section 
3 authorized  the  company  to  extend  its  works  and  till  out  into 
the  lake  as  far  as  a line  parallel  with  Michigan  avenue  run- 
ning from  a point  in  the  southern  pier  400  feet  from  the  east 
end  thereof  to  the  north  line  of  Randolph  street  extended.  The 
breakwater  was  built  along  that  line  and  the  intervening  space 
tilled  up. 

The  bed  of  the  lake  belonged  to  the  State  of  Illinois  and  not 
to  the  City  of  Chicago,  and  the  ordinance  of  June  14,  1852, 
could  not  therefore  operate  as  a grant  of  title  to  the  sub- 
merged land,  but  merely  gave  permission,  so  far  as  the  city 
was  concerned,  for  the  extension  of  the  works  of  the  railroad 
company,  pursuant  to  the  powers  conferred  by  its  charter, 
over  an  additional  area  in  the  City  of  Chicago. 

The  so-called  Lake  Front  Act  of  April  16,  1869  (special 
ordinances  1915,  page  866)  was  entitled  “An  Act  in  relation 
to  a portion  of  the  submerged  lands  and  lake  park  grounds 
lying  on  and  adjacent  to  the  shore  of  Lake  Michigan,  on  the 


47 


eastern  frontage  of  the  City  of  Chicago.’’  Section  3 contains 
the  following  provisions : 

“The  right  of  the  Illinois  Central  Railroad  Company 
under  the  grant  from  the  state  in  its  charter  * * * and 
nnder  and  by  virtue  of  its  appropriation,  occupancy,  use 
and  control,  and  the  riparian  ownership  incident  to  such 
grant,  appropriation,  occupancy,  use  and  control,  in  and 
to  the  lands  submerged  or  otherwise  lying  east  of  said 
line  running  parallel  with  and  400  feet  east  of  the  west 
line  of  Michigan  avenue,  in  fractional  sections  10  and 
15,  township  and  range  as  aforesaid,  is  hereby  confirmed, 
and  all  the  right  and  title  of  the  Slate  of  Illinois  in  and 
to  the  submerged  lands  constituting  the  bed  of  Lake 
Michigan,  and  lying  east  of  the  tracks  and  breakwater  of 
the  Illinois  Central  Railroad  Company,  for  the  distance 
of  one  mile,  and  between  the  south  line  of  the  south  pier 
extended  eastwardly,  and  a line  extended  eastward  from 
the  south  line  of  lot  21  * * * are  hereby  granted  in  fee 
to  the  said  Illinois  Central  Railroad  Company,  its  suc- 
cessors and  assigns.”  Provided,  “that  nothing  herein 
contained  shall  authorize  obstructions  to  the  Chicago 
harbor  or  impair  the  public  right  of  navigation.  ’ ’ 

Fractional  section  10  above  referred  to  includes  the  terri- 
tory east  of  Michigan  avenue  between  Randolph  street  ex- 
tended and  the  river,  upon  which  Fort  Dearborn  Addition  is 
located. 

This  act  was  passed  over  the  Governor’s  veto,  and  the  Gen- 
eral Assembly  in  1873  passed  another  act  purporting  to  re- 
peal it  in  toto.  The  company  disputed  the  validity  of  this 
repeal,  and  prepared  extensive  plans  for  the  development  of 
Chicago  harbor  for  general  purposes  of  navigation,  having  lit- 
tle if  any  relation  to  the  functions  and  powers  of  a railroad 
company  conferred  by  its  charter.  In  regard  to  these  plans 
it  became  involved  in  a controversy  with  the  public  authorities, 
and  in  1883  the  Attorney  General  of  the  State  of  Illinois  filed 
an  information  to  determine  the  rights  of  the  company.  To 
this  litigation  the  Illinois  Central  Railroad  Company,  the 
State  of  Illinois  and  the  City  of  Chicago  were  all  parties.  The 
original  decree  of  the  Circuit  Court  of  the  United  States  for 


48 


the  Northern  District  of  Illinois,  entered  September  24,  1888, 
finds  the  title  to  certain  public  grounds  and  other  lands  to  be 
in  the  City  of  Chicago  and  proceeds  as  follows : 

4 ‘ That  the  Illinois  Central  Railroad  Company  is  the 
owner  in  fee  of  all  the  wharves,  piers  and  other  structures 
erected  by  it  in  the  city  of  Chicago,  east  of  Michigan  ave- 
nue, south  of  Chicago  River,  and  north  of  the  north  line 
of  Randolph  street,  extended  eastwardly  as  shown  upon 
said  Morehouse  map,  including  the  station  grounds  lying 
west  of  the  slip  C,  the  pier  marked  C lying  east  of  slip  C, 
and  represented  upon  the  Morehouse  map  to  have  been 
built  in  1867,  and  piers  1,  2 and  3,  lying  east  of  pier  C 
last  mentioned,  and  represented  upon  said  map  to  have 
been  built  as  follows:  pier  1 in  1872  and  1873,  pier  2 in 
1881,  and  pier  3 in  1880;  and  is  also  entitled  to  the  use, 
for  purposes  of  its  business,  of  the  slips  marked  on 
said  Morehouse  map.” 

The  slips  last  mentioned  are  those  now  under  considera- 
tion. That  the  “ other  structures”  found  to  he  owned  by  the 
company  do.  not  include  the  slips  is  obvious  from  the  fact  that 
the  company  is  found  to  be  “also”  entitled  to  the  use  of  the 
slips. 

After  certain  other  findings  with  reference  to  parts 
of  the  shore  not  now  in  question,  and  after  the  finding  herein- 
above quoted  respecting  the  effect  and  operation  of  the  Lake 
Front  Act  of  April  16,  1869,  the  decree  concludes  as  follows : 

“It  is  further  ordered,  adjudged  and  decreed  that  the 
defendant,  the  Illinois  Central  Railroad  Company,  be  and 
it  is  hereby  perpetually  enjoined  and  restrained  from 
erecting  structures  or  in  filling  with  earth  or  other 
materials  any  portion  of  the  bed  of  Lake  Michigan  as  it 
now  exists  and  as  shown  on  said  Morehouse  map  east  or 
in  front  of  said  fractional  sections  ten  and  fifteen — that 
is,  east  or  in  front  of  the  grounds  now  occupied  and  used 
by  it  between  Chicago  River  and  the  north  line  of  Ran- 
dolph street  extended  eastwardly,  or  east  or  in  front  of 
the  grounds  now  occupied  and  used  by  it  between  the 
north  line  of  Randolph  and  the  center  line  of  Sixteenth 
street,  each  extended  eastwardly,  except  that  said  com- 
pany may  complete  the  slip  or  basin  already  commenced 


49 


immediately  north  of  Sixteenth  street  extended,  with  a 
wharf  on  each  side  of  it  not  exceeding  one  hundred  feet 
in  width  each,  where  vessels  coming  into  such  slip  or  basin 
may  load  and  unload  and  upon  which  tracks  of  the  com- 
pany may  he  laid.  ” 

The  case  was  appealed  to  the  Supreme  Court  of  the  United 
States,  which  handed  down  its  decree  and  mandate  April  10, 
1893.  This  mandate,  after  reciting  in  full  the  decree  of  the 
lower  court,  proceeds  as  follows : 

4 4 On  consideration  whereof,  it  is  now  here  ordered,  ad- 
judged and  decreed  by  this  court  that  the  State  of  Illinois 
is  the  owner  in  fee  of  the  submerged  lands  constituting 
the  bed  of  Lake  Michigan  which  the  third  section  of  the 
act  of  April  16,  1869,  purported  to  grant  to  the  Illinois 
Central  Railroad  Company,  and  that  the  act  of  April  15, 
1873,  repealing  the  same  is  valid  and  effective  for  the  pur- 
pose of  restoring  to  the  state  the  same  control,  dominion 
and  ownership  of  said  lands  that  it  had  prior  to  the 
passage  of  the  act  of  April  16,  1869. 

But  the  decree  below,  as  it  respects  the  pier  commenced 
in  1872  and  the  piers  completed  in  1880  and  1881,  marked 
1,  2 and  3,  near  Chicago  River,  and  the  pier  and  docks 
between  and  in  front  of  Twelfth  and  Sixteenth  streets, 
is  modified  so  as  to  direct  the  court  below  to  order  such 
investigation  to  be  made  as  may  enable  it  to  determine 
whether  those  piers  erected  by  the  company  by  virtue  of 
its  riparian  proprietorship  of  lots  formerly  constituting 
part  of  section  ten  extend  into  the  lake  beyond  the  point 
of  practical  navigability,  having  reference  to  the  man- 
ner in  which  commerce  in  vessels  is  conducted  on  the 
lake ; and  if  it  be  determined  upon  such  investigation  that 
said  piers  or  any  of  them  do  not  extend  beyond  such  point, 
then  that  the  title  and  possession  of  the  railroad  com- 
pany to  such  piers  shall  be  affirmed  by  the  court ; but  if  it 
be  ascertained  and  determined  that  such  piers  or  any  of 
them  do  extend  beyond  such  navigable  point,  then  the 
said  court  shall  direct  the  said  pier  or  piers  to  the  excess 
ascertained  to  be  abated  and  removed,  or  that  other  pro- 
ceedings relating  thereto  to  be  taken  on  the  application  of 
the  state  as  may  be  authorized  by  law ; and  also  to  order 
that  similar  proceedings  be  taken  to  ascertain  and  de- 
termine whether  or  not  the  pier  and  dock  constructed 
by  the  railroad  company  in  front  of  the  shore  between 


50 


Twelfth  and  Sixteenth  streets  extend  beyond  the  point  of 
navigability  and  to  affirm  the  title  and  possession  of  the 
company  if  they  do  not  extend  beyond  snch  point,  and 
if  they  do  extend  beyond  such  point  to  order  the  abate- 
ment and  removal  of  the  excess,  or  that  other  proceed- 
ings relating  thereto  be  taken  on  application  of  the  state 
as  may  be  authorized  by  law.  Except  as  modified  in  the 
particulars  mentioned,  the  decree  in  each  of  the  three 
cases  on  appeal  must  be  affirmed  with  costs  against  the 
railroad  company.  ” 

The  subsequent  inquiry  about  encroachments  beyond  the  line 
of  practical  navigation  was  determined  in  favor  of  the  com- 
pany, and  a supplemental  decree  was  accordingly  entered  by 
the  Circuit  Court  May  26,  1896,  which,  after  reciting  the  evi- 
dence introduced  with  respect  to  the  line  of  navigation,  con- 
cludes as  follows: 

“It  is  found  and  adjudged  by  the  court  that  the  said 
piers  and  docks  referred  to  in  the  aforesaid  judgment 
and  mandate  of  the  Supreme  Court  and  there  described  as 
piers  marked  1,  2 and  3,  near  Chicago  River,  and  the  piers 
and  docks  constructed  by  the  said  railroad  company  in 
front  of  the  shore  between  Twelfth  and  Sixteenth  streets, 
all  in  the  city  of  Chicago  in  the  State  of  Illinois,  do  not 
extend  nor  does  either  of  them  extend  into  the  lake  beyond 
the  point  of  practical  navigability,  having  reference  to  the 
manner  in  which  commerce  in  vessels  is  conducted  on  the 
lake. 

“It  is  therefore  ordered,  adjudged  and  decreed  that  the 
title  and  possession  of  the  said  Illinois  Central  Railroad 
Company  to  the  said  piers  and  docks,  and  each  of  them 
and  every  part  thereof,  be  and  the  same  is  hereby  af- 
firmed. ’ ’ 

This  supplemental  decree  was  affirmed  by  the  Circuit  Court 
of  Appeals  in  an  opinion  reported  in  91  Fed.  Rep.,  955,  and 
by  the  Supreme  Court  of  the  United  States,  184  U.  S.,  77 ; the 
result  being  that,  except  as  expressly  modified  by  the  mandate 
of  the  Supreme  Court  above  quoted,  the  original  decree  of 
September  24,  1888,  stands  in  full  force  and  effect. 

Title  to  the  bed  of  Lake  Michigan  is  vested  in  the  State 
of  Illinois,  and  mere  ownership  of  the  shore  gives  the  pro- 


51 


prietor  no  right  to  reclaim  land  from  the  shallow  waters  of  the 
lake  nor  to  erect  any  structures  whatever  upon  the  submerged 
land. 

Revell  v.  People , 177  111.,  468. 

Cobb  v.  Lincoln  Park  Commissioners,  202  111.,  427. 

Shively  v.  Boivlby,  152  U.  S.,  1. 

While  title  to  the  bed  of  the  lake  is  held  by  the  state  in 
trust  for  the  people  for  purposes  of  navigation,  the  right  of 
the  state  to  prevent  encroachment  does  not  depend  at  all  upon 
such  encroachments  being  obstructions  to  navigation. 

Revell  v.  People , 177  111.,  468. 

Unless  the  title  to  the  submerged  land  in  these  slips  is  vested 
in  the  company,  it  remains-  in  the  State  of  Illinois,  and  no- 
body can  build  upon  it  without  the  state’s  consent.  The  Illi- 
nois Central  Railroad  Company,  therefore,  in  asserting  a right 
to  fill  up  the  slips  assumes  the  burden  of  showing  either  title 
in  itself  or  a license  from  the  State  of  Illinois. 

The  charter  of  the  Illinois  Central  Railroad  Company  did 
not  operate  as  a grant  to  the  company  of  any  lands  submerged 
beneath  the  waters  of  Lake  Michigan,  nor  did  it  give  the 
company  any  right  to  reclaim  such  submerged  lands. 

Illinois  Central  R.  R.  Co.  v.  Chicago,  173  111.,  471. 

Illinois  Central  R.  R.  Co.  v.  Chicago,  176  U.  S.,  646. 

In  the  case  last  cited  the  United  States  Supreme  Court  de- 
cided, first,  that  the  bed  of  the  lake  was  not  granted  to  the 
company  or  devoted  to  its  use  by  the  description  of  “ lands” 
or  of  “ streams”  or  of  “waters,”  as  those  terms  are  used  in 
its  charter ; and  secondly,  that  even  if  the  charter  were  suscep- 
tible of  the  construction  contended  for  by  the  company  no  ex- 
tension of  its  grounds  for  tracks,  engine  houses,  depots  and 
shops  could  be  made  within  the  city  limits  until  the  consent 
of  the  city  council  had  been  secured. 

The  Lake  Front  Act  of  1869  was  adjudged  by  the  decree  in 


52 


the  Lake  Front  case  to  be  valid  in  so  far  as  it  purported  to 
confirm  any  grant  made  to  the  company  under  its  charter, 
and  said  act,  while  in  force,  operated  as  a license  legalizing 
certain  works  undertaken  by  the  company,  but  after  its  repeal 
in  1873  it  gave  the  company  no  authority  to  encroach  further 
upon  the  waters  of  Lake  Michigan.  The  act,  in  confirming  any 
grant  made  by  the  charter,  obviously  could  not  confirm  any 
asserted  rights  which,  by  the  decision  of  the  court  in  the  case 
between  the  same  parties  last  commented  upon,  were  found 
not  to  be  granted  by  the  charter  at  all. 

The  decree  in  the  Lake  Front  case  confirmed  in  the  com- 
pany the  title  to  the  piers  and  to  “the  use  for  the  pur- 
poses of  its  business”  of  the  intervening  slips.  The  right  to 
use  the  slips  does  not,  as  the  company  seems  to  contend,  im- 
port a right  to  destroy  them  by  converting  them  into  dry  land 
and  using  that  as  a part  of  the  railroad  yards  and  docks.  Even 
if  the  right  confirmed  by  the  decree  to  the  use  of  the  slips 
could  be  construed  as  meaning  an  exclusive  right,  the  conclu- 
sion would  not  follow  that  the  company  could  destroy  the  slips 
and  cast  the  burden  of  its  shipping  into  the  open  water  beyond. 

The  fact  that  the  decree  quieted  title  to  the  piers  does  not 
tend  to  prove  that  the  company  owned  the  intervening  slips. 
'Such  a claim  was  made  and  denied  in  a proceeding  in  New 
York  to  acquire  land  for  construction  of  the  municipal  sub- 
way system.  A dock  company  claimed  compensation  for  cer- 
tain submerged  lands  lying  between  two  piers,  both  of  which 
it  owned  in  fee,  but  the  court  in  rejecting  the  claim  said: 

“Whatever  rights  the  dock  company  had  in  these  lands 
were  such  as  under  common-law  principles  were  incident 
and  appurtenant  to  the  ownership  of  the  piers  above  de- 
scribed. Under  these  principles  the  owner  of  the  piers 
had  a right  of  reasonable  access  over  the  waters  covering 
the  surrounding  lands,  though  title  to  such  lands  was  in 
the  state.  * * * The  possession  and  enjoyment  of  these 
rights  did  not  create  necessarily  any  title  in  fee  in  the 
lands  alongside  or  between  the  piers.  Title  in  fee  to  sucli 


53 


lands  could  be  acquired  only  by  grant  and  not  as  a mere 
incident  or  appurtenance  to  the  ownership  of  the  piers.” 

In  re  McClellan,  146  App.  Div.,  594 ; 131  N.  Y.  Supp., 
633;  204  N.  Y.,  677;  98  N.  E.,  1107. 

The  decrees  in  the  Lake  Front  case  enjoin  the  Illinois  Cen- 
tral Railroad  Company  from  filling  any  part  of  the  lake  “east 
or  in  front  of  the  grounds  now  occupied  or  used  by  it,”  be- 
tween the  Chicago  River  and  the  projection  of  Randolph 
street.  Whether  the  slips  fall  within  the  letter  of  this  pro- 
hibition may  be  a debatable  question,  but  even  if  they  do 
not  the  injunction  against  filling  beyond  a certain  line  could 
hardly  be  tortured  into  an  affirmative  license  to  do  something 
else  which  the  court  may  have  supposed  to  be  lawful  but 
which  was  in  fact  unlawful.  It  must  be  borne  in  mind  that 
the  Lake  Front  decision,  as  was  afterwards  conceded,  rests  in 
part  on  a mistaken  view  of  the  rights  of  riparian  owners 
in  Illinois  to  reclaim  the  submerged  shallows.  The  Supreme 
Court  of  the  United  States  erroneously  assumed  that  by  the 
law  of  Illinois  an  owner  of  the  shore  had  the  right  to  build 
wharves  and  piers  into  the  lake  until  they  reached  water  of 
navigable  depth.  The  decision,  though  legally  wrong  in  so  far 
as  it  is  based  on  that  assumption,  no  doubt  estops  the  parties 
with  respect  to  rights  actually  adjudicated,  but  obviously  it 
should  not  be  extended  by  implication  or  by  broad  principles 
of  interpretation  so  as  to  enlarge  the  scope  of  the  estoppel. 
While  the  legal  operation  of  this  injunctional  order  is  not 
free  from  doubt,  the  evident  purpose  of  the  decree  was,  while 
leaving  the  company  with  what  it  had  already  acquired,  to 
forbid  further  encroachments,  and  it  should  be  limited  to  that 
effect. 

In  the  supplemental  decree  of  May  26,  1896,  there  is  a refer- 
ence to  “docks”  as  well  as  “piers.”  A careful  reading  of  the 
text  of  the  decree  hereinabove  quoted  will  serve  to  make  it 
clear  that  wherever  docks  are  mentioned  the  reference  is  to 
certain  wharves  or  structures  between  Twelfth  and  Sixteenth 


54 


streets,  and  that  the  term  does  not,  as  has  been  argued  by 
counsel  for  the  railroad  company,  have  any  application  to 
slips,  whether  north  of  Randolph  street  or  elsewhere.  In- 
deed, the  engineer  of  the  Illinois  Central  Railroad  Company, 
in  a communication  dated  May  5,  1919,  transmitting  to  the 
company’s  counsel  the  documents  relating  to  Slip  B about 
to  be  mentioned,  speaks  of  the  “ docks  immediately  on  the 
sides  of  the  slips,”  refers  to  the  fact  that  the  company  “ built 
the  docks  along  the  east  and  west  side  of  Slip  B,”  and  in  other 
passages  makes  use  of  the  word  “ docks”  as  contradistin- 
guished from  slips  and  basins. 

A further  specific  claim  of  title  to  Slips  A and  B is  made 
on  behalf  of  the  Illinois  Central  Railroad  Company  _by  reason 
of  evidence  contained  in  two  contracts  which  it  entered  into 
with  the  United  States,  one  dated  April  20,  1855  (Graham 
Report,  p.  59),  and  the  other  dated  May  21,  1859.  According 
to  a map  furnished  by  the  railroad  company  with  a copy  of 
the  latter  contract,  Slip  A,  originally  wider  than  now,  was 
begun  in  1854  and  completed  in  1855,  and  Slip  B was  begun 
in  1856  and  completed  in  1858.  The  old  south  pier,  con- 
structed by  the  Government  many  years  before  the  Illinois 
Central  Railroad  Company  came  into  being,  barred  access 
from  these  slips  to  the  lake,  and  the  argument  is  that  Slips 
A and  B were  mere  basins  created  by  the  railroad  company 
for  its  own  convenience  on  its  own  private  property.  The 
records  do  not  warrant  that  conclusion. 

By  the  two  contracts  above  referred  to  permission  was 
granted  to  the  company  to  cut  openings  through  the  south  pier 
so  as  to  connect  Slips  A and  B,  respectively,  with  the  channel 
of  the  river.  In  consideration  of  a Government  permit,  the 
Illinois  Central  Railroad  Company  by  each  contract  agreed 
that  before  making  any  breach  in  the  pier  it  would  render 
the  walls  of  its  ship  basin  water-tight  on  all  sides;  that  a 
drawbridge  with  substantial  abutments  should  be  constructed 


55 


across  the  opening;  that  all  expense  of  construction,  repair 
and  maintenance  should  be  borne  by  the  company ; and  that  in 
case  of  revocation  of  the  permit  the  company  should  close  the 
opening  and  restore  the  pier  to  its  former  condition. 

Neither  the  State  of  Illinois  nor  the  City  of  Chicago  was  a 
party  to  these  contracts.  So  far  as  the  evidence  now  available 
discloses,  the  so-called  “ basins”  were  not  excavations  made 
or  to  be  made  in  lands  to  which  the  Illinois  Central  Railroad 
Company  had  acquired  title,  but  are  portions  of  the  bed 
and  waters  of  the  lake  or  river  which  were  left  unfilled,  and 
the  openings  in  the  pier  were  permitted  in  order  to  prevent 
the  pier  from  shutting  off  traffic  between  the  basins  and  the 
exterior  waters.  Any  title  claimed  by  the  company  to  its 
made  lands  rests  on  the  terms  of  the  decree  in  the  Lake  Front 
case.  Long  before  the  Lake  Front  litigation  began  Slips  A 
and  B,  exactly  like  the  other  slips,  opened  directly  into  the 
public  waters,  and  the  decree  in . no  way  differentiated  be- 
tween them.  It  has  already  been  noted  that  the  railroad 
company  claimed  the  right  to  engage  in  extensive  projects  for 
harbor  development,  which  right  was  subsequently  denied  by 
the  courts.  Under  these  circumstances  there  is  at  least  sub- 
stantial doubt  as  to  the  right  of  the  company  to  fill  and  use 
the  slips  to  which  the  openings  in  the  pier  constitute  the  en- 
trances. 

In  my  opinion  the  jurisdiction  of  the  harbor  master  extends 
over  the  five  slips  lying  between  the  piers  or  penetrating  the 
grounds  of  the  Illinois  Central  Railroad  Company,  and  the 
right  of  the  company  to  fill  the  slips  is  at  least  so  questionable 
as  to  justify  the  city  authorities  in  refusing  a permit  for  such 
operations,  subject  to  such  action  as  the  city  council  may 
authorize  with  respect  thereto. 

Yours  respectfully, 

Walter  L.  Fisher. 


